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Jeannie Suk
Recommended Citation
Jacob Gersen and Jeannie Suk, The Sex Bureaucracy, 104 Calif. L. Rev. 881 (2016).
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The Sex Bureaucracy
Jacob Gersen & Jeannie Suk*
DOI: http://dx.doi.org/10.15779/Z38HV80
Copyright © 2016 California Law Review, Inc. California Law Review, Inc. (CLR) is a
California nonprofit corporation. CLR and the authors are solely responsible for the content of their
publications.
* Professors of Law, Harvard Law School. We thank the following students for excellent
research assistance over several years: Elizabeth Bewley, Kelsey Bleiweiss, Peter Bruland, Alison
Burton, Thomas Chapman, Ryan Cohen, Elena Davis, Sean Driscoll, Nicholas Dube, Sophie Elsner,
Timothy Goh, Joseph Goldstein, Shane Hunt, Rauvin Johl, Carys Johnson, Maria Lacayo, Blake
Lanning, J. Harold Lee, Andrew Lewis, Ezra Marcus, Courtney Millian, Michael Mullan, Justin
Patrick, Sheri Pan, Lauren Ross, Nicholas Ruge, Lauren Schloss, Clara Spera, Mary Schnoor, Ben
Schwartz, Elizabeth Stork, Anna Vinogradav, Virginia Williamson, and Amy Zhang. We are grateful
for very useful comments from Paul Abramson, Ian Ayres, Elizabeth Bartholet, Gabriella Blum,
Jessica Bulman-Pozen, Kristen Carpenter, Jennifer Chacon, Adam Cox, Justin Dillon, Rosalind Dixon,
Elizabeth Emens, Charles Fried, Nancy Gertner, Abbe Gluck, John Goldberg, Jamal Greene, Aya
Gruber, Janet Halley, Stephen Henrick, Dan Ho, Bert Huang, Vicki Jackson, Duncan Kennedy, Issa
Kohler-Hausmann, Anna Lvovsky, Michael McConnell, Melissa Murray, Robert Nagel, Anne Joseph
O’Connell, Ruth Okediji, David Pozen, Jed Rubenfeld, David Schraub, David Sklansky, Holger
Spamann, Matthew Stephenson, David Strauss, Julie Suk, Cass Sunstein, Nirvana Tanoukhi, Amanda
Tyler, John Witt, and Emily Yoffe. We benefited from critiques raised in presentations at Columbia
Law School, Colorado Law School, Harvard Law School, Sciences Po Law School, Stanford Law
School, Thursday Morning Talks for Mt. Auburn Hospital, University of California, Berkeley, School
of Law, University of New South Wales Faculty of Law, University of Wisconsin-Madison Center for
the Humanities, and Yale Law School.
881
882 CALIFORNIA LAW REVIEW [Vol. 104:881
INTRODUCTION
Is bureaucracy the antonym of desire?
We are living in a new sex bureaucracy. The past several decades have
witnessed a sea change in the way sex is legally regulated in the United States.
We have seen a bureaucratic turn in sex regulation. Saliently decriminalized in
the past decades,3 sex has at the same time become accountable to bureaucracy.
Today, we have an elaborate and growing federal bureaucratic structure that, in
effect, regulates sex.
By “bureaucratic turn” we mean:
First, within the federal government, evolving bureaucratic institutions
formulate and enforce sex policy, applying the overlapping rubrics of sex
discrimination and sexual violence. Over time, as administrative agencies have
developed more law on these topics, and regulatory definitions of
discrimination and violence have expanded and become more uncertain, sex
itself has increasingly become a subject of bureaucratic regulation. Our claim is
that through the interpretation and implementation of legal obligations relating
to sexual violence and sex discrimination, the federal bureaucracy is now
regulating sex itself.
Second, there has been a shift toward the use of bureaucratic tools. The
mark of bureaucracy is procedure and organizational form. Early federal
statutes prohibited employers and educational institutions from engaging in sex
discrimination4 and required schools to report crimes on campus.5 Over time,
these federal prohibitions and mandates have been interpreted to require private
and public educational institutions to adopt policies and procedures to respond,
prevent, research, survey, inform, investigate, adjudicate, and train. Today, the
failure of a school to have certain procedures, policies, and forms is itself
thought to violate federal law.
The leveraging of substantive prohibitions (for example, schools must not
discriminate) to regulate procedures (for example, schools must use the
preponderance of the evidence standard to adjudicate) has produced the third
manifestation of the bureaucratic turn: the burgeoning of specified mini-
2. Max Weber, Bureaucracy, in FROM MAX WEBER: ESSAYS IN SOCIOLOGY 196, 215–16
(H.H. Gerth & C. Wright Mills eds. & trans., 1946).
3. See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003).
4. See, e.g., Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17 (2012);
Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681–88 (2012).
5. See Clery Act, 20 U.S.C. § 1092(f) (2012).
884 CALIFORNIA LAW REVIEW [Vol. 104:881
6. Cf. JANET HALLEY, SPLIT DECISIONS: HOW AND WHY TO TAKE A BREAK FROM
FEMINISM 21 (2006) (“Just think of the tremendous effort that U.S. employers and schools must
devote to the regulation of sexual conduct at work, through sexual harassment policies that have
produced a sexual harassment bureaucracy with its own cadre of professionals and its own legal
character.”).
7. The sex bureaucracy also applies to primary and secondary schools through Title IX.
OFFICE OF CIVIL RIGHTS, U.S. DEP’T OF EDUC., DEAR COLLEAGUE LETTER: SEXUAL VIOLENCE
BACKGROUND, SUMMARY, AND FAST FACTS (Apr. 4, 2011), http://www2.ed.gov/about/offices/
list/ocr/docs/dcl-factsheet-201104.pdf [https://perma.cc/J9ER-6HBV]. There are also extensive rules
about sex in the contexts of the military and prison. See Sexual Assault Prevention and Response: Law
& DOD Policy, U.S. DEP’T DEFENSE, http://www.sapr.mil/index.php/dod-policy
[https://perma.cc/P9JP-DEPL] (last visited Mar. 22, 2016); Justice Department Releases Final Rule to
Prevent, Detect, and Respond to Prison Rape, NAT’L PREA RESOURCE CTR.,
http://www.prearesourcecenter.org/news-events/news/838/justice-department-releases-final-rule-to-
prevent-detect-and-respond-to-prison [https://perma.cc/MBN2-78EX] (last visited Mar. 22, 2016).
8. For a general critique questioning whether universities are well suited to implement such
bureaucratic procedures for investigating and adjudicating sexual violence matters, see Janet
Napolitano, “Only Yes Means Yes”: An Essay on University Policies Regarding Sexual Violence and
Sexual Assault, 33 YALE L. & POL’Y REV. 387 (2015).
9. See 2 MAX WEBER, Bureaucracy, in ECONOMY AND SOCIETY 956 (Guenther Roth &
Claus Wittich eds., 1978).
2016] THE SEX BUREAUCRACY 885
what else the bureaucracy will do.10 One might call this “bureaucratic sex
creep”—the enlargement of bureaucratic regulation of ordinary sex.
By “ordinary sex,” we mean voluntary adult sexual conduct that does not
harm others. We do not mean ordinary in the sense of normal, as opposed to
abnormal. To state our assumptions directly: There is a distinction between
sexual violence or harassment, a wrong that law is justified in prohibiting and
regulating, and sex, a liberty that consenting adults may choose to exercise. To
legally regulate the former is not necessarily to regulate the latter.11 Catharine
MacKinnon’s critique that respecting a private space of sexual liberty
“translates into a right to sexually abuse with impunity, to impose sex on the
less powerful and get away with it”12 is appealing. But valuing liberty in sex
does not necessarily entail the underwriting of violent, coerced, or abusive sex.
There is today a real contest about where the line between sex and sexual
violence or harassment is, and as with all lines, there will be uncertainty over
where some marginal cases fall. Nevertheless, most will agree that there is
some line to be observed and enforced.
If the reader shares these assumptions, then our hope is to demonstrate
that the federal bureaucracy is regulating sex, not merely sexual violence or
harassment. Our claim is not just that the set of sexual conduct classified as
illegal has grown or changed, but that nonviolent, non-harassing, voluntary
sexual conduct—whether considered normal, idiosyncratic, or perverse—is
today regulated by the bureaucracy. Thus we use the very imperfect term
“ordinary sex,” which understandably raises hackles sounding in feminist
critiques of privacy, to distinguish sex from sexual violence or harassment, and
to denote nonviolent, voluntary, consensual sex among adults.
The meeting of bureaucracy’s aspiration of technocratic and procedural
rationality with the realm of sex is our topic. For many theorists of bureaucracy
since Weber, the characteristics of bureaucracy—the ultimate legal-rational
form—are supposed to drive emotion and subjective desire out of
10. The terms “bureaucracy” and “administration” are often used interchangeably in
administrative law scholarship. Although we also follow that not-quite-correct linguistic practice, it is
worth a definitional discussion at the outset. Technically, administration is the task of day-to-day
operations of an organization, and bureaucracy is a particular organizational form. In the United States
government, the task of administration belongs mainly to the President and administrative agencies—
authorities that might be one person or many, organized in a range of different ways. The
administrative apparatus is organized as a bureaucracy, a large pyramid with the President on top, the
cabinet departments beneath, and smaller agencies and bureaus lower still on the organizational chart.
11. But see CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 146
(1989) (“[T]he major distinction between intercourse (normal) and rape (abnormal) is that the normal
happens so often that one cannot get anyone to see anything wrong with it.”). A pointed objection to a
notion of “ordinary sex” along these lines is that within it “unequal sex can flourish and masquerade as
equal sex, as sex as such, with the result that sex that is forced, coerced, and pervasively unequal can
be construed as consensual, wanted, and free.” Catharine A. MacKinnon, The Road Not Taken: Sex
Equality in Lawrence v. Texas, 65 OHIO ST. L.J. 1081, 1088 (2004) (emphasis added).
12. MacKinnon, The Road Not Taken, supra note 11, at 1090, 1094.
886 CALIFORNIA LAW REVIEW [Vol. 104:881
13. See also, e.g., PETER M. BLAU & MARSHALL W. MEYER, BUREAUCRACY IN MODERN
SOCIETY (3d ed. 1988); POLITICS, POLICY, AND ORGANIZATIONS: FRONTIERS IN THE SCIENTIFIC
STUDY OF BUREAUCRACY (George A. Krause & Kenneth J. Meier eds., 2005); JAMES Q. WILSON,
BUREAUCRACY: WHAT GOVERNMENT AGENCIES DO AND WHY THEY DO IT (1989); Gary J. Miller
& Terry M. Moe, Bureaucrats, Legislators, and the Size of Government, 77 AM. POL. SCI. REV. 297
(1983); William A. Niskanen, Bureaucrats and Politicians, 18 J.L. & ECON. 617 (1975). See generally
JAMES M. LANDIS, THE ADMINISTRATIVE PROCESS (1938) (arguing for a technocratic vision of
federal bureaucracy); HANDBOOK OF BUREAUCRACY (Ali Farazmand ed., 1994).
14. Katherine M. Franke, Theorizing Yes: An Essay on Feminism, Law, and Desire, 101
COLUM. L. REV. 181, 207 (2001).
15. One professor at Northwestern University reports facing a Title IX investigation over an
essay she had written about “sexual politics and campus” and subsequent public statements on the
topic. See generally Laura Kipnis, My Title IX Inquisition, CHRON. HIGHER EDUC. (May 29, 2015),
http://laurakipnis.com/wp-content/uploads/2010/08/My-Title-IX-Inquisition-The-Chronicle-Review-
.pdf [https://perma.cc/XD47-R246].
2016] THE SEX BUREAUCRACY 887
important reason to pay attention to the development and workings of the sex
bureaucracy.
I.
SEXUAL DEREGULATION?
Though evolving case law suggests a growing recognition of liberty in
one’s sex life, sexual regulation may in fact have transmuted itself into a
bureaucratic regime. In Lawrence v. Texas in 2003, Justice Kennedy noted “an
emerging awareness that liberty gives substantial protection to adult persons in
deciding how to conduct their private lives in matters pertaining to sex.”16
Lawrence stated clearly that government did not have a legitimate interest in
regulating private consensual sexual conduct.17 Justice Scalia in dissent
lamented that Lawrence “effectively decree[d] the end of all morals
legislation.”18 Because disapproval of sexual immorality was the very same
interest furthered by laws against “bigamy, same-sex marriage, adult incest,
prostitution, masturbation, adultery, fornication, bestiality, and obscenity,”19 it
was a reasonable inference from Lawrence that criminal law could no longer
prohibit private consensual sexual acts, at least on the rationale of sexual
morality.20
The notion that people had a legally protected liberty to do as they wished
in their sex lives was indeed a departure from the traditional criminal law
regulation of sex. At common law, all sex was criminal except sex in a
marriage: the only legal sex one could have was marital sex.21 Through
prohibitions on adultery, fornication, sodomy, and rape, criminal law regulated
virtually all nonmarital sex, but did not regulate marital rape. Thus sex fell into
two categories: legal sex, corresponding to marital sex; and illegal sex,
corresponding to nonmarital sex. These criminal sex prohibitions reflected
marital morality: the crime of adultery was a violation of marital monogamy.
Fornication was sex outside of the marital relationship. Sodomy breached the
traditional marital framework because it was not reproductive in purpose.
Two trends of the past half century are relevant here. First, sex has
undergone a general legal liberalization since the sexual revolution.22 By late
twentieth century, criminal laws against adultery, sodomy, and fornication were
rarely enforced or altogether repealed.23 Lawrence swept away any lingering
bans on voluntary sex among adults in private. Second, as large swaths of
nonmarital sex were decriminalized, the idea that marriage marked the border
between legal and illegal sex eroded, though of course marital sexual morality
remained an important feature of social life. The fact that sex is occurring
before or outside of marriage is no longer the decisive feature that would make
sex illegal. Indeed, as marital rape and domestic violence emerged as
categories of violence prohibited and sanctioned by criminal law, it became
clear that not all sexual conduct within marriage was legal.24
In the same time frame, however, an alternative marker of sexual
illegality came to the fore. If traditionally rape, along with adultery, sodomy,
and fornication, was understood as sexual immorality, the past half century has
seen a rewriting of the rationale for criminalizing rape.25 In feminist law
reform, rape was the harmful subordination of women.26 The concept of
violence qua subordination became the distinguishing feature of criminal
sexual conduct.27 It explained not just what was wrong with rape, but also sex
with minors, sex for money, and sex in relationships of unequal power. As
forms of subordination, they were impliedly violent, even if not explicitly or
literally so. Statutory rape and prostitution, for example, once paradigmatic
crimes of immorality,28 are increasingly understood to be criminal because they
subordinate a relatively powerless person.29
22. See, e.g., Roe v. Wade, 410 U.S. 113 (1973) (recognizing right to access an abortion);
Eisenstadt v. Baird, 405 U.S. 438 (1972) (recognizing right of unmarried people to possess
contraception); Griswold v. Connecticut, 381 U.S. 479 (1965) (recognizing right of married people to
possess contraception).
23. See, e.g., Commonwealth v. Stowell, 449 N.E.2d 357, 360–61 (Mass. 1983) (noting that
the state’s adultery statute had “fallen into a very comprehensive desuetude”) (citation omitted).
24. See, e.g., People v. Liberta, 64 N.Y.2d 152, 171–72 (1984) (holding that a rape statute’s
marital exemption did not apply when wife had restraining order against husband, and ultimately
finding the marital exemption unconstitutional); cf. Jill Elaine Hasday, Contest and Consent: A Legal
History of Marital Rape, 88 CALIF. L. REV. 1373, 1464–74 (2000) (stating that rape could entitle wife
to divorce based on intolerable cruelty).
25. See Jeannie C. Suk, “The Look in His Eyes”: The Story of Rusk and Rape Reform, in
CRIMINAL LAW STORIES 171 (Donna Coker & Robert Weisberg eds., 2013).
26. See MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE, supra note 11, at 247–
48.
27. See, e.g., KEITH BURGESS-JACKSON, RAPE: A PHILOSOPHICAL INVESTIGATION 289
(1996) (“Rape—the act and practice—subjugates an entire class of individuals (women) to another
(men) . . . every woman, qua woman, is wronged by it.”).
28. See, e.g., Brockway v. People, 2 Hill 558 (N.Y. Sup. Ct. 1842) (“It will be admitted by all,
that the act of renting a dwelling house to be kept for purposes of public prostitution, is, in itself,
highly indecent and immoral, evincing a mind deeply depraved and profligate.”); Regina v. Prince, 2
L.R.-C.C.R. 154 (1875); see also United States v. Bitty, 208 U.S. 393, 398–402 (1908) (interpreting a
statute forbidding the “importation into the United States of any alien woman or girl for the purpose of
2016] THE SEX BUREAUCRACY 889
prostitution, or for any other immoral purpose”); Jones v. Commonwealth, 80 Va. 18, 21 (1885)
(characterizing prostitution as “wicked and despicable”).
29. See, e.g., Collins v. State, 691 So. 2d 918, 924 (Miss. 1997) (“At the heart of [statutory
rape] statutes is the core concern that children should not be exploited for sexual purposes regardless
of their ‘consent.’ They simply cannot appreciate the significance or the consequences of their
actions.”); Garnett v. State, 632 A.2d 797, 800, 805 (Md. 1993); Allen v. Stratton, 428 F. Supp. 2d
1064, 1073 (C.D. Cal. 2006) (“California has determined that the crime of pimping requires a more
serious penalty than the related crime of prostitution, . . . since ‘prostitutes are criminally exploited by
[pimps].’”) (citations omitted) (quoting People v. Pangelina, 172 Cal. Rptr. 661 (Ct. App. 1981)).
30. See, e.g., 18 PA. CONS. STAT. § 3101 (2014) (defining “[f]orcible compulsion” as the “use
of physical, intellectual, moral, emotional or psychological force”).
31. See, e.g., State in the Interest of M.T.S., 609 A.2d 1266, 1277 (N.J. 1992) (“[P]hysical
force in excess of that inherent in the act of sexual penetration is not required for such penetration to be
unlawful.”).
32. See, e.g., N.H. REV. STAT. ANN. § 632-A:2 (2007) (defining as aggravated felonious
sexual assault those assaults that occur “[w]hen at the time of the sexual assault, the victim indicates
by speech or conduct that there is not freely given consent to performance of the sexual act”); N.Y.
PENAL LAW § 130.25 (2001); WIS. STAT. § 940.225 (2011).
33. See, e.g., Janet Halley, The Move to Affirmative Consent, SIGNS (Nov. 10, 2015),
http://signsjournal.org/currents-affirmative-consent/halley [https://perma.cc/A4FZ-S6F3] (last updated
Nov. 16, 2015); Hannah Kozlowska, Yes Means Yes: The Big Consent Debate, N.Y. TIMES: OP-TALK
(Oct. 15, 2014, 6:21 AM), http://op-talk.blogs.nytimes.com/2014/10/15/yes-means-yes-the-big-
consent-debate [http://perma.cc/47Q2-SX5N]; Judith Shulevitz, Regulating Sex, N.Y. TIMES (June 27,
2015), http://www.nytimes.com/2015/06/28/opinion/sunday/judith-shulevitz-regulating-sex.html
890 CALIFORNIA LAW REVIEW [Vol. 104:881
sexual assault, but “sexual assault” also became an umbrella term that would
cover nonpenetrative, nonforcible, and nonconsensual acts, in addition to the
paradigmatic sexual violation of forcible rape.34 Rape expanded to cover more
sexual conduct, and sexual assault expanded to cover much more than rape. As
expanding concepts of violence and nonconsent reshaped the notion of “sexual
violence,” the border between decriminalized sex and criminalized sex shifted.
In the past forty years, concern about inadequate law enforcement
response to sexual violence led not only to pressure for increased and tougher
criminal justice response.35 It also led to pressure on noncriminal parts of the
federal regulatory apparatus to increase their response to sexual violence. The
federal bureaucracy took up the expanding concepts of violence and
nonconsent in its efforts to bring the regulatory apparatus to bear on the
problem of sexual violence. Some federal legislation and enforcement priorities
focused on criminal prohibitions, but most federal activity took place outside of
criminal law.36
Criminal prohibitions travel as a bundle with extensive procedural
protections for defendants and limitations on what conduct can be punished
constitutionally. A person accused of a criminal sex offense has a right to due
process, a right to counsel, a right of confrontation, and so on. The rule of
lenity generally means that ambiguous criminal prohibitions will be interpreted
in favor of the defendant. But in the administrative context, where the
regulation is not criminal, the state can act without the processes owed to
people accused of crimes. The state need not wait until prohibited conduct
occurs to punish it. Bureaucratic tools can be more proactive, extensive,
pervasive, preventive, and anticipatory. They can cover more conduct and more
territory—and are doing so.
Conceptual moves that have accompanied the rise of serious
criminalization of sexual violence have also contributed to the bureaucratic
regulation of sex. The bureaucracy, not bound by the procedural rules that
constrain criminal enforcement, began to regulate in the area of sexual
violence, and the prominence of sexual violence grew in the federal
government. With the increasing use of bureaucratic tools to expand the
concept of sexual violence, the balance of regulated to unregulated sex has
[http://perma.cc/9Z7N-FZDG] (describing the debate over whether the American Law Institute’s
Model Penal Code revision for sexual assault should adopt an affirmative-consent standard).
34. See, e.g., Sexual Assault, U.S. DEP’T JUST., http://www.justice.gov/ovw/sexual-assault
[http://perma.cc/YCV2-ZARL] (last updated Apr. 2, 2015) (“Sexual assault is any type of sexual
contact or behavior that occurs without the explicit consent of the recipient.”).
35. See generally, e.g., Cassia Spohn & Katharine Tellis, The Criminal Justice System’s
Response to Sexual Violence, 18 VIOLENCE AGAINST WOMEN 169 (2012).
36. See WHITE HOUSE COUNCIL ON WOMEN & GIRLS, RAPE AND SEXUAL ASSAULT: A
RENEWED CALL TO ACTION 19–32 (2014), https://www.whitehouse.gov/sites/default/files/docs/
sexual_assault_report_1-21-14.pdf [https://perma.cc/QU27-P35V] (noting that “[e]ven at its best, the
criminal justice system is a limited remedy for the harm many victims have suffered,” id. at 21, and
discussing numerous examples of noncriminal federal regulation of sexual violence).
2016] THE SEX BUREAUCRACY 891
II.
ADMINISTERING SEX
The sex bureaucracy has emerged from the convergence of two legal-
conceptual endeavors: the attempts to address sexual violence37 and to remedy
sex discrimination.38 Over the decades, legal definitions of some forms of sex
discrimination came to incorporate sexual violence,39 and the idea of sexual
violence expanded to cover nonviolent, but nonetheless discriminatory,
conduct.40 Indeed, bureaucratic overlap and cross-fertilization have led sex
discrimination and sexual violence to become in many ways
indistinguishable:41 violence is discrimination is violence.
What does the sex bureaucracy look like? In what follows, we describe
four components working together. First, the leveraging of the concept of crime
to regulate conduct that is not criminal, through federal reporting requirements
that in effect extend to ordinary sex. Second, the federal oversight of
institutional policies and procedures used for disciplining sexual conduct.
Third, public health and risk reduction models for sexual-violence prevention
that regulate conduct traditionally in the domain of morals regulation, like
pornography and sexual fantasy. Finally, federal mandates to perform research
on sexual climate that in effect constructs the sexual climate and promotes
certain understandings of sex.
37. See, e.g., Violence Against Women Act of 1994, Pub. L. No. 103-322, tit. IV, 108 Stat.
1902 (codified as amended in scattered sections of the U.S. Code).
38. See, e.g., Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17 (2012);
and Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681–88 (2012).
39. See, e.g., Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 75 (1992) (holding that a high
school student who was allegedly subject to sexual harassment could seek damages under Title IX);
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 73 (1986) (holding that a claim of hostile
environment sexual harassment is a form of sex discrimination actionable under Title VII).
40. Cf. United States v. Castleman, 134 S. Ct. 1405, 1411 (2014) (“‘Domestic violence’ is not
merely a type of ‘violence’; it is a term of art encompassing acts that one might not characterize as
‘violent’ in a nondomestic context.”).
41. See, e.g., OFFICE FOR CIVIL RIGHTS, U.S. DEP’T OF EDUC., KNOW YOUR RIGHTS: TITLE
IX PROHIBITS SEXUAL HARASSMENT AND SEXUAL VIOLENCE WHERE YOU GO TO SCHOOL 1 (2011),
http://www2.ed.gov/about/offices/list/ocr/docs/title-ix-rights-201104.pdf [https://perma.
cc/QV7K-NAC8] (“Under Title IX, discrimination on the basis of sex can include sexual harassment
or sexual violence, such as rape, sexual assault, sexual battery, and sexual coercion.”).
892 CALIFORNIA LAW REVIEW [Vol. 104:881
A. Regulation of Quasi-Crime
To illustrate how criminal concepts and bureaucratic models have
interacted to expand federal regulation of sex, consider the trajectory of campus
crime reporting, which in time came to encompass noncriminal incidents.
Enacted in 1990, the Jeanne Clery Disclosure of Campus Security Policy and
Campus Crime Statistics Act (Clery Act)42 required any institution of higher
education participating in the federal financial aid program to disclose campus
statistics and security information regarding certain crimes.43 The Clery Act
required colleges to report crime data to the Department of Education (DOE)
and to publicly disclose these data in Annual Security Reports (ASRs).44 The
basic idea was that students and employees armed with information about
crime on or near campuses would be able to take precautions or avoid attending
or working at certain high-crime schools. Schools, in turn, would be induced to
address crime more aggressively than they otherwise might.
The Violence Against Women Act (VAWA 2013), as reauthorized in
2013, amended the Clery Act to add campus reporting requirements for
incidents of “dating violence, domestic violence, and stalking.”45 It required
that schools publicly disclose their programs and policies to prevent and
address those incidents.46 In requiring schools to report crime statistics, the
Clery Act has always used its own definitions of the crimes. The Department of
Education’s (DOE) 2014 Final Rule implementing VAWA’s changes to the
Clery Act (2014 VAWA Regulations), addressed the definitional gap between
what schools are required to report as criminal incidents and what may be
prosecutable crimes in jurisdictions where the schools are located:
Although we recognize that these incidents may not be considered
crimes in all jurisdictions, we have designated them as “crimes” for the
purposes of the Clery Act. We believe that this makes it clear that all
incidents that meet the definitions in [VAWA] must be recorded in an
institution’s statistics, whether or not they are crimes in the
institution’s jurisdiction.47
42. The Clery Act was originally enacted as part of the Student Right-to-Know and Campus
Security Act of 1990, Pub. L. No. 101-542, 104 Stat. 2381 (codified as amended in scattered sections
of 20 U.S.C.), which amended the Higher Education Act of 1965, Pub. L. No. 89-329, 79 Stat. 1219
(codified as amended in scattered sections of 20 U.S.C.).
43. In 1992, the Clery Act was amended to require the development and implementation of
specific policies and procedures to protect the rights of sexual assault survivors. See Higher Education
Amendments of 1992, Pub. L. No. 102-325, § 486(c), 106 Stat. 448, 621–22 (codified as amended at
20 U.S.C. § 1092 (2012)).
44. Higher Education Amendments of 1998, Pub. L. No. 105-244, § 486(e), 112 Stat. 1581,
1742–45 (codified as amended at 20 U.S.C. § 1092(f)).
45. Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4,
§ 304(a)(1)(B)(iii), 127 Stat. 54, 89 (codified as amended at 20 U.S.C. § 1092(f)(1)(F)(iii)).
46. See id. § 304(a)(5), 127 Stat. at 89–90 (codified as amended at 20 U.S.C. § 1092(f)(8)(A)).
47. Violence Against Women Act, 79 Fed. Reg. 62,752, 62,764 (Oct. 20, 2014) (codified at 34
C.F.R. § 668 (2015)).
2016] THE SEX BUREAUCRACY 893
Thus the bureaucratic reporting regime includes not only crimes but also quasi-
criminal or noncriminal incidents that federal regulations define as reportable
crimes for Clery Act purposes.
Leveraging crime statistics reporting to require that schools report
incidents as criminal, even when they are not crimes in that jurisdiction, allows
the federal bureaucracy to expand its regulatory reach. For instance, one of the
reportable crimes, as interpreted by 2014 VAWA Regulations, is “sexual
assault.”48 Sexual assault is defined in various ways in different state criminal
statutes. For reporting purposes, the 2014 VAWA Regulations’ definition of
“sexual assault” is “[a]n offense that meets the definition of rape, fondling,
incest, or statutory rape as used in the FBI’s UCR (Uniform Crime Reporting)
program and included in Appendix A of this subpart.”49 The FBI’s UCR
Program actually contains two different programs with different definitions for
offenses: the National Incident-Based Reporting System (NIBRS) and the
Summary Reporting System (SRS). Appendix A of the 2014 VAWA
Regulations defines “rape” with reference to the FBI’s UCR SRS program:
“The penetration, no matter how slight, of the vagina or anus with any body
part or object, or oral penetration by a sex organ of another person, without the
consent of the victim.”50
But the same VAWA Regulations define the three other named
subcategories of “sexual assault”—fondling, incest, and statutory rape—with
reference to the FBI’s other UCR program, the NIBRS, and the definitions are
laid out thus:
Sex Offenses. Any sexual act directed against another person, without
the consent of the victim, including instances where the victim is
incapable of giving consent.
A. Fondling—The touching of the private body parts of
another person for the purpose of sexual gratification,
without the consent of the victim, including instances
where the victim is incapable of giving consent because
of his/her age or because of his/her temporary or
permanent mental incapacity.
48. The Clery Act does not mandate statistical reporting of “sexual assault” per se, but rather
“sex offenses” and “domestic violence, dating violence, and stalking.” See 20 U.S.C. §§
1092(f)(1)(F)–(F)(iii) (2012). However, the Department of Education interprets the statute to require
such reports: the Executive Summary of the 2014 VAWA Regulations states that “VAWA amended
the Clery Act to require institutions to compile statistics for incidents of dating violence, domestic
violence, sexual assault, and stalking . . . .” 79 Fed. Reg. at 62,752. “The final regulations will—
Require institutions to maintain statistics about the number of incidents of dating violence, domestic
violence, sexual assault, and stalking that meet the definitions of those terms.” Id. “The regulations
would reflect the statutory requirement that institutions compile and report statistics for incidents of
dating violence, domestic violence, sexual assault, and stalking that are reported to the campus security
authorities or local police agencies.” Id. at 62,779.
49. Id. at 62,784.
50. Id. at 62,789.
894 CALIFORNIA LAW REVIEW [Vol. 104:881
“offenses against chastity, common decency, morals, and the like.”55 Could the
Clery Act have contemplated federal regulation of “offenses against chastity,
common decency, morals, and the like” and made them reportable “crimes”?
Putting VAWA’s statutory definition of “sexual assault” together with the FBI
UCR SRS’s “sex offenses” definition at the time of enactment, a reasonable
reading of VAWA would require schools to report “offenses against chastity,
common decency, morals, and the like,” under the rubric of disclosing “sexual
assault” incidents. On this plausible, but not inevitable, reading, reporting
consensual and nonforcible “offenses against chastity, common decency,
morals, and the like” would be legally required. If this is correct, the
bureaucratic requirement of reporting “sexual assault” mandates the regulation
of sex lives, not just sexual violence.
VAWA’s second definition of sexual assault underlines the point as well.
This second definition is in the universal definitions section of VAWA and is
not Clery Act-specific: “any nonconsensual sexual act proscribed by Federal,
tribal, or State law, including when the victim lacks capacity to consent.”56 The
definition of sexual assault here does not speak of criminal prohibition, but
rather of “any nonconsensual sexual acts proscribed by Federal, tribal, or State
law.” Defining sexual assault in this way brings the most ambitious
prohibitions into the federal definition. For example, California and New York
have made affirmative consent a requirement for universities and colleges
receiving state funding.57 Sex without affirmative consent then would be
proscribed by these state laws and thus constitute sexual assault for the
purposes of VAWA programs. Further, the statute does not say nonconsensual
sexual contact, but rather nonconsensual sexual act, meaning that verbal or
physical acts that do not entail touching may well be “sexual assault” for
VAWA purposes.
Clearly, it is impossible to know which sexual acts to treat as crimes
under VAWA 2013 without a way to determine consent, but VAWA itself does
not define the term. Initially, DOE proposed a definition of consent: “the
affirmative, unambiguous, and voluntary agreement to engage in a specific
sexual activity during a sexual encounter.”58 But in the 2014 Final Rule, DOE
abandoned the task of defining consent altogether, surprisingly concluding that
“no determination as to whether that element has been met is required” for
administration and enforcement of the Clery Act.59 While DOE acknowledged
that the regulation’s definition of “sex offenses” for reporting purposes has lack
of consent as an element, the agency stated that “all sex offenses that are
55. FBI, SUMMARY REPORTING SYSTEM (SRS) USER MANUAL 163 (2013). This definition
excluded “rape and prostitution and commercialized vice.” Id.
56. § 304(a)(16), 127 Stat. at 58.
57. CAL. EDUC. CODE § 67386 (2015); N.Y. EDUC. LAW § 6441 (2015).
58. Violence Against Women Act, 79 Fed. Reg. 62,752, 62,755 (Oct. 20, 2014) (codified at 34
C.F.R. § 668.46 (2015)).
59. Id. at 62,756.
896 CALIFORNIA LAW REVIEW [Vol. 104:881
may assist, and to Safety and Security and/or the Oberlin Police
Department for response, as was done in relation to this incident.64
Clery Act crimes would of course be reported in a school’s Annual Security
Report, but this sort of live incident-by-incident email blast is not just
reporting. It is constructing the environment in which students and employees
live and work. Such messages communicate that the university is a sexually
dangerous place. They remind us that the educational environment contains a
constant exposure to underlying sexual risk, and that the bureaucracy is
monitoring.
1. Sex Discrimination
We have seen that the concept of crime is a significant building block of
the sex bureaucracy. The regulation of sex through the requirement of reporting
quasi-criminal sexual incidents is part of the foundation of the sex bureaucracy.
The other important building block is the concept of discrimination. Sexual
incidents classified under regulatory terms such as “sexual assault” are the
same conduct that the federal bureaucracy increasingly treats as sex
discrimination. The interactive expansion and crossing of crime and
discrimination have characterized the shift toward the bureaucratic regulation
of sex.
The federal antidiscrimination law that has most spawned the growth of
the sex bureaucracy in education is Title IX of the Education Amendments of
1972,65 which states that “[n]o person in the United States shall, on the basis of
sex, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or activity receiving
Federal financial assistance.”66 The Supreme Court has described Title IX as
64. Marjorie Burton, Clery Notice: Reported Sexual Imposition, OBERLIN ONCAMPUS (Apr.
6, 2013), https://oncampus.oberlin.edu/bulletins/2013/04/06/clery-notice-reported-sexual-imposition
[https://perma.cc/8GQ4-DT7R] (emphasis added). Another example:
You are receiving this Crime Warning as part of UW-Madison’s commitment to providing
campus-area crime information, in compliance with the federal Clery Act (Jeanne Clery
Disclosure of Campus Security Policy and Campus Crime Statistics Act).
On Sunday, September 21, a UW student reported to a campus official that she was
touched inappropriately, without consent, in an on-campus residence hall. The victim
reported that this has happened before, and possibly to others as well.
At this time, law enforcement is not involved, at the request of the victim. However, the
university is investigating the incident. The perpetrator has been identified and the
university’s disciplinary procedures have been initiated.
Marc Lovicott, Sexual Assault—10/17/14, UW-MADISON POLICE DEP’T (Oct. 17, 2014, 12:00
AM), https://uwpd.wisc.edu/incident_reports/sexual-assault-101714 [https://perma.cc/2VWA-
MH5W] (emphasis added).
65. Pub. L. No. 92-318, 86 Stat. 373 (1972) (codified as amended at 20 U.S.C. §§ 1681–1688
(2012)).
66. 20 U.S.C. § 1681(a) (listing exceptions as well).
898 CALIFORNIA LAW REVIEW [Vol. 104:881
67. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286 (1998) (also discussing Title VI
of the Civil Rights Act).
68. See 20 U.S.C. § 1682 (“Each Federal department and agency which is empowered to
extend Federal financial assistance to any education program or activity . . . is authorized and directed
to effectuate the provisions of section 1681 of this title . . . by issuing rules, regulations, or orders of
general applicability . . . Compliance with any requirement adopted pursuant to this section may be
effected . . . by the termination of or refusal to grant or to continue assistance under such program or
activity to any recipient.”).
69. See MARTHA MATTHEWS & SHIRLEY MCCUNE, TITLE IX GRIEVANCE PROCEDURES: AN
INTRODUCTORY MANUAL 38 (1976) (“The fundamental purpose of a Title IX grievance procedure is
to provide a fair, orderly, and systematic process for identifying, modifying, and remedying any policy,
procedure, or practice of an education agency or institution which is not in compliance with Title IX
requirements.”).
70. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66–67 (1986) (finding, for the first
time, that sexual harassment constituted sex discrimination, which could violate Title VII if it created a
hostile work environment); see also Vicki Schultz, Reconceptualizing Sexual Harassment, 107 YALE
L.J. 1683, 1685 & n.4 (1998); Katherine M. Franke, What’s Wrong with Sexual Harassment?, 49
STAN. L. REV. 691, 692 (1997); Ellen Frankel Paul, Sexual Harassment as Sex Discrimination: A
Defective Paradigm, 8 YALE L. & POL’Y REV. 333, 343 (1990). For a nuanced discussion of some
unforeseen ways that workplace sexual harassment regulation may undermine gender equality on the
job, see Vicki Schultz, The Sanitized Workplace, 112 YALE L.J. 2061, 2074–82 (2003).
71. Sexual Harassment Guidance: Harassment of Students by School Employees, Other
Students, or Third Parties, 62 Fed. Reg. 12,034 (Mar. 13, 1997) [Sexual Harassment Guidance 1997].
2016] THE SEX BUREAUCRACY 899
95. See U.S. Department of Education Releases List of Higher Education Institutions with
Open Title IX Sexual Violence Investigations, U.S. DEP’T EDUC. (May 1, 2014),
http://www.ed.gov/news/press-releases/us-department-education-releases-list-higher-education-
institutions-open-title-ix-sexual-violence-investigations [https://perma.cc/T55G-3H4Q]; About The
Chronicle’s Title IX Investigation Tracker, CHRON. HIGHER EDUC., http://projects.chronicle.com
/titleix/about [https://perma.cc/6W5Q-4W5D] (last visited Mar. 31, 2016).
96. This move was met with considerable protest by a number of professors at these
institutions, who objected to many of the changes schools made in response to OCR’s threats to cut off
federal funding. See, e.g., Elizabeth Bartholet et al., Rethink Harvard’s Sexual Harassment Policy,
BOS. GLOBE (Oct. 15, 2014), https://www.bostonglobe.com/opinion/2014/10/14/rethink-harvard-
sexual-harassment-policy/HFDDiZN7nU2UwuUuWMnqbM/story.html [http://perma.cc/B3VX-
EUU5]; Eugene Volokh, Open Letter From 16 Penn Law School Professors About Title IX and Sexual
Assault Complaints, WASH. POST (Feb. 19, 2015), https://www.washingtonpost.com/news/volokh-
conspiracy/wp/2015/02/19/open-letter-from-16-penn-law-school-professors-about-title-ix-and-sexual-
assault-complaints [https://perma.cc/Z2Y8-JBSH].
97. See, e.g., U.S. Department of Education Reaches Agreement with the State University of
New York to Address and Prevent Sexual Assault and Harassment of Students, U.S. DEP’T EDUC.
(Oct. 31, 2013), http://www.ed.gov/news/press-releases/us-department-education-reaches-agreement-
state-university-new-york-address-and-prevent-sexual-assault-and-harassment-students
[https://perma.cc/V9LQ-CYN5] (agreeing to, among other things, designate a Title IX Coordinator at
each of SUNY’s campuses, “[c]onduct Title IX complaint investigations promptly instead of waiting
for the conclusion of criminal investigations,” and “[p]rovide interim relief for the complainant”).
Those familiar with administrative law will recognize that this practice is not unheard of, but it is
subject to a series of standard objections—legal and political. See Robert A. Anthony, Interpretive
Rules, Policy Statements, Guidances, Manuals, and the Like—Should Federal Agencies Use Them to
Bind the Public?, 41 DUKE L.J. 1311, 1312–15 (1992); Tim Wu, Agency Threats, 60 DUKE L.J. 1841,
1843–45 (2011).
98. Ali, Dear Colleague Letter, supra note 80, at 6; see also Sexual Harassment Guidance
1997, supra note 71, at 12,044 (noting that policies prohibiting sexual harassment could even “bring
conduct of a sexual nature to the school’s attention so that the school can address it before it becomes
sufficiently serious as severe, persistent, or pervasive to create a hostile environment”); REVISED
HARASSMENT GUIDANCE, supra note 76, at 19 (noting also that schools should address any problem
before it becomes “sufficiently serious”).
2016] THE SEX BUREAUCRACY 903
Schools must have policies and procedures for regulating student conduct that
is not creating a hostile environment and therefore is not sexual harassment and
therefore not sex discrimination. OCR’s purported oversight role is to regulate
how schools do so, but by definition, this conduct is outside the agency’s
jurisdiction.
The bureaucratic regulation of sexual violence and discrimination may
seem to be a rather different proposition from the bureaucratic regulation of sex
itself, and it should be. But consider the conduct that the bureaucracy deems
within its purview. The DCL defines sexual harassment as “unwelcome
conduct of a sexual nature. . . . Sexual violence is a form of sexual harassment
prohibited by Title IX.”99 The 2001 Guidance explained, “Conduct is
unwelcome if the student did not request or invite it and ‘regarded the conduct
as undesirable or offensive.’”100 The unwelcome conduct “creates a hostile
environment if the conduct is sufficiently serious that it interferes with or limits
a student’s ability to participate in or benefit from the school’s program.”101
The DCL also explains that “a single or isolated incident of sexual harassment
[e.g., sexual assault] may create a hostile environment if the incident is
sufficiently severe.”102
Thus, if conduct of a sexual nature is unrequested and regarded as
undesirable, it is unwelcome conduct. That conduct may be physical or
verbal.103 This definition of sexual harassment has been adopted and extended
by schools including Harvard University.104
The boundary of federally regulated sex in this bureaucratic regime is
whether the unrequested verbal or nonverbal sexual conduct was regarded as
undesirable.105 Query whether a verbal or nonverbal act that is seeking explicit
agreement to have sex would not be “unwelcome conduct of a sexual nature” if
a person to whom that act is directed “did not request or invite it” and
“regarded the conduct as undesirable.”106 This may seem far-fetched because it
is hard to imagine that one such act could create a hostile environment. But in a
letter to the University of Montana, OCR wrote that rather than limit sexual
harassment claims to unwelcome conduct of a sexual nature that creates a
hostile environment, the university should define sexual harassment “more
broadly” as “‘any unwelcome conduct of a sexual nature.’ Defining ‘sexual
harassment’ as ‘a hostile environment’ leaves unclear when students should
report unwelcome conduct of a sexual nature and risks having students wait to
report to the University until such conduct becomes severe or pervasive or
both.”107
Between 1972 and 2011, a statutory ban on discrimination was
transformed into a bureaucratic structure consisting of policies, procedures, and
organizational forms that regulate sexual conduct. The public debate about
Title IX and sexual assault on college campuses gives the impression that the
target of this bureaucracy is sexual violence: that is, rape and sexual assault.
Within the bureaucracy, however, the concepts of sexual violence and
harassment have expanded to encompass, for example, unrequested conduct of
a sexual nature that is regarded by someone as undesirable. These are
significant shifts in legal and social understandings. The broader the class of
conduct that is regulated in the name of regulating sexual violence as a form of
sex discrimination, the larger the footprint of the growing sex bureaucracy.
The federal bureaucracy interprets federal law to require colleges and
universities to have internal bureaucracies that regulate sexual conduct. An
effect of this development is the replication of bureaucracy by bureaucracy.
Schools must employ Title IX coordinators to oversee their compliance and
their processes of responding to individual complaints. At some schools this is
a single person, but at many schools this entails an entire office, staff, and
structure dedicated to implementing federal directives regarding regulation of
sexual conduct. Former OCR governmental bureaucrats often lead or staff the
extra-governmental bureaucracies, which makes sense from the perspective of
schools seeking expert knowledge of what OCR wants schools to do.108 The
(quoting Does v. Covington Cnty. Sch. Bd. of Educ., 930 F. Supp. 554, 569 (M.D. Ala. 1996))
(internal quotation omitted).
107. Letter from Anurima Bhargava, Chief, Civil Rights Div., Educ. Opportunities Section,
U.S. Dep’t of Justice, & Gary Jackson, Reg’l Dir., Office of Civil Rights, Seattle Office, U.S. Dep’t of
Educ., to Royce Engstrom, President, Univ. of Mont., & Lucy France, Univ. Counsel, Univ. of Mont.
(May 9, 2013), http://www.justice.gov/sites/default/files/opa/legacy/2013/05/09/um-ltr-findings.pdf
[https://perma.cc/QS56-26QL]. The American Association of University Professors has expressed
concern that such broad notions of Title IX hostile environment sexual harassment threaten free speech
and academic freedom. See AM. ASS’N OF UNIV. PROFESSORS, THE HISTORY, USES, AND ABUSES OF
TITLE IX (Mar. 24, 2016), http://www.aaup.org/file/TitleIX-Report.pdf [https://perma.cc/88SM-
EVB3].
108. For example, the Title IX officer at Harvard University is Mia Karvonides, a former OCR
employee. Q&A with Harvard’s Title IX Officer, HARV. GAZETTE (July 2, 2014),
http://news.harvard.edu/gazette/story/2014/07/qa-with-harvards-title-ix-officer [https://perma.cc/YR
2016] THE SEX BUREAUCRACY 905
28-7KGW]; Jared T. Lucky, Mia Karvonides, Federal Civil Rights Attorney, Named Harvard’s New
Title IX Coordinator, HARV. CRIMSON, http://www.thecrimson.com/article/2013/3/13/Karvonides-
Title-IX-Coordinator [http://perma.cc/582X-GZLA] (last updated Mar. 14, 2013).
109. See 34 C.F.R. §§ 668.46(j)–(k) (2015). VAWA’s text requires each school participating in
the federal financial aid program to “develop and distribute as part of the” ASR:
a statement of policy regarding—
i. such institution’s programs to prevent domestic violence, dating violence, sexual
assault, and stalking; and
ii. the procedures that such institution will follow once an incident of domestic violence,
dating violence, sexual assault, or stalking has been reported, including a
statement of the standard of evidence that will be used during any institutional
conduct proceeding arising from such a report.
Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, 127 Stat. 54, 90 (2013)
(codified at 20 U.S.C. § 1092(f)(8)).
110. See, e.g., LISA N. SACCO, CONG. RESEARCH SERV., THE VIOLENCE AGAINST WOMEN
ACT: OVERVIEW, LEGISLATION, AND FEDERAL FUNDING 16 (2014) (stating that VAWA 2013
“established new mandatory grant guidelines for institutions of higher education in their incident
response procedures and development of programs to prevent domestic violence, sexual assault,
stalking, and dating violence”).
111. GAIL MCCALLION, CONG. RESEARCH SERV., HISTORY OF THE CLERY ACT: FACT
SHEET 2 (2014).
906 CALIFORNIA LAW REVIEW [Vol. 104:881
112. Violence Against Women Act, 79 Fed. Reg. 62,751 (codified at 34 C.F.R. § 668 (2015)).
113. See 34 C.F.R. § 668.46(b)(11)(vi).
114. Id. § 668.46(k)(i)(A)–(C).
115. Id. § 668.46(k).
2016] THE SEX BUREAUCRACY 907
the flavor of criminal tribunals because they discipline conduct that is called
criminal in the federal statute and regulations at issue,116 and because some of
the conduct may actually be criminal in the relevant jurisdiction. But they are,
of course, not criminal tribunals; rather, they are noncriminal tribunals that
determine a person’s responsibility for conduct that may or may not be
criminal. These tribunals differ from criminal trails in several respects.
First, more conduct is covered by the regulatory definitions than is
covered by criminal law so that the adjudicatory body exercises jurisdiction
over a much broader domain of conduct (sexual misconduct) than would a
criminal court.117 Second, the institutional disciplinary procedures do not
contain (and may be prohibited from containing) procedural protections for the
accused that exist in a criminal context. For example, OCR prohibits sexual
assault investigations from employing a standard of proof higher than
“preponderance of the evidence.”118 Again, these requirements apply to any
school that participates in the federal student assistance program, which is
virtually every institution of higher education in the United States.119
Most schools have long had disciplinary procedures to handle allegations
of student misconduct, including sexual misconduct. What is different today is
that the content of those procedures, for sexual matters, is specified and
controlled by the federal bureaucracy. The result is the establishment of mini-
bureaucracies in educational institutions required to address sexual conduct
(unclearly) indicated as illegal by federal regulation, the structure and
functioning of which is directly specified by a federal agency. In essence, these
are privately administered bureaucracies mandated by the federal bureaucracy,
deciding liability for sexual conduct that is called criminal but may not be even
116. Id. § 668.46(c) (noting that an institution must report on the incidence of a number of
“[p]rimary crimes,” including “[s]ex offenses,” including rape, fondling, incest, and statutory rape and
“[d]ating violence, domestic violence, and stalking”).
117. See Ali, Dear Colleague Letter, supra note 80, at 9–10 (“In some cases, the conduct [at
issue] may constitute both sexual harassment under Title IX and criminal activity. Police
investigations may be useful for fact-gathering; but because the standards for criminal investigations
are different, police investigations or reports are not determinative of whether sexual harassment or
violence violates Title IX. Conduct may constitute unlawful sexual harassment under Title IX even if
the police do not have sufficient evidence of a criminal violation.”).
118. See id. at 11 (noting that “in order for a school’s grievance procedures to be consistent
with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more
likely than not that sexual harassment or violence occurred),” and rejecting higher standards of proof,
such as the “clear and convincing” standard as “inconsistent with the standard of proof established for
violations of the civil rights laws, and . . . thus not equitable under Title IX”).
119. “Title IX prohibits discrimination based on sex in any educational program or activity that
receives federal funds” and applies to “schools that benefit from federal funding indirectly by virtue of
their students’ receipt of federal financial aid,” thus “almost every college and university in the United
States, public or private, must comply” with Title IX. Lavinia M. Weizel, Note, The Process That Is
Due: Preponderance of the Evidence as the Standard of Proof for University Adjudications of Student-
on-Student Sexual Assault Complaints, 53 B.C. L. REV. 1613, 1615 & n.11 (2012).
908 CALIFORNIA LAW REVIEW [Vol. 104:881
3. Shadow Administration
OCR’s 1997 and 2001 Guidances on Title IX sexual harassment were
published after notice and comment.121 The 2011 Dear Colleague Letter was
not issued after notice and comment.122 Instead, OCR stated its views in the
DCL about what Title IX required, and then launched dozens of investigations
of schools for failure to comply with the DCL’s requirements.123 OCR
threatened to terminate federal funding to schools unless they adopted policies
and procedures that complied, and then entered into negotiated settlement
agreements with individual schools.124 A straightforward political objection is
that an administrative agency leveraged the threat of denying federal funds to
push institutions to adopt policies and procedures that the agency prefers, but
that are not required by statute or binding regulation.
By its own terms, the Dear Colleague Letter is a nonbinding document
that cannot impose any new legal obligation.125 Yet, the DCL contains
interpretations that exist nowhere else in federal law, and OCR relies on those
interpretations when investigating schools for noncompliance with federal law.
Sometimes agencies prefer to avoid the costs and time associated with using
notice-and-comment procedures, or to avoid making judgments that would be
subject to public comment and judicial review. The legislative rule doctrine,
however, requires that even if an agency announces a policy that it declares to
be nonbinding, if the agency treats it as, or it has the effect of, binding the
regulated parties, then the policy is deemed a legislative rule, and therefore
unlawfully promulgated without notice and comment.126 Given that OCR has
131. See 79 Fed. Reg. 35,418, 35,443 (June 20, 2014) (proposed rule); 79 Fed. Reg. 62,752
62,775 (Oct. 20, 2014) (final rule).
132. Letter from Sen. James Lankford, Chairman, Subcomm. on Regulatory Affairs & Fed.
Mgmt., to Hon. John B. King, Jr., Acting Sec’y, U.S. Dep’t of Educ. (Jan. 7, 2016),
https://d28htnjz2elwuj.cloudfront.net/wp-content/uploads/2016/01/07092429/Lankford-letter-to-ED-
1-7-2016.pdf [https://perma.cc/2V95-G3BH].
133. Letter from Catherine E. Lhamon, Assistant Sec’y for Civil Rights, to Sen. James
Lankford, Chairman, Subcomm. on Regulatory Affairs & Fed. Mgmt. (Feb. 17, 2016),
http://chronicle.com/items/biz/pdf/DEPT.%20of%20EDUCATION%20RESPONSE%20TO%20LA
NKFORD%20LETTER%202-17-16.pdf [https://perma.cc/Z47Y-CNPL].
134. See id.
135. The response failed to satisfy Senator Lankford. See Letter from Sen. James Lankford,
Chairman, Subcomm. on Regulatory Affairs & Fed. Mgmt., to Hon. John B. King, Jr., Acting Sec’y,
U.S. Dep’t of Educ. (Mar. 4, 2016),
2016] THE SEX BUREAUCRACY 911
http://www.lankford.senate.gov/imo/media/doc/3.4.16%20Lankford%20letter%20to%20Dept.%20of
%20Education.pdf [https://perma.cc/XPR2-P9WR].
136. See generally Sexual Assault on Campus: Working to Ensure Student Safety: Hearing
Before the S. Comm. on Health, Educ., Labor & Pensions, 114th Cong. (2014),
http://www.help.senate.gov/hearings/sexual-assault-on-campus-working-to-ensure-student-safety
[https://perma.cc/58Z4-SFXG].
137. See generally Examining the Use of Agency Regulatory Guidance: Hearing Before the S.
Subcomm. on Regulatory Affairs & Fed. Mgmt., 114th Cong. (2015),
http://www.hsgac.senate.gov/hearings/examining-the-use-of-agency-regulatory-guidance
[https://perma.cc/QWU7-YY7P].
138. See Matthew R. Triplett, Note, Sexual Assault on College Campuses: Seeking the
Appropriate Balance Between Due Process and Victim Protection, 62 DUKE L.J. 487, 502–05 (2012).
139. See Wu, supra note 97 (discussing other examples).
140. See, e.g., Lawrence v. Texas, 539 U.S. 558, 564–65 (2003) (“The [Griswold] Court
described the protected interest as a right to privacy and placed emphasis on the marriage relation
and the protected space of the marital bedroom.”) (citing Griswold v. Connecticut, 381 U.S. 479,
485 (1965)); Petition for Rehearing of Respondent at 10, Bowers v. Hardwick, 478 U.S. 186
(1986) (No. 85-140) (positing that the question was not what Hardwick “was doing in the privacy
of his bedroom, but what the State of Georgia was doing there”); Griswold, 381 U.S. at 485
(“Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs
of the use of contraceptives?”).
912 CALIFORNIA LAW REVIEW [Vol. 104:881
141. Violence Against Women Reauthorization Act of 2013, Pub. L. 113–4, 127 Stat. 54, 90
(2013) (codified at 20 U.S.C. § 1092(f)(8)).
142. Ali, Dear Colleague Letter, supra note 80, at 15–19.
143. See id. at 16–19.
144. 34 C.F.R. § 668.46(j)(1)(i) (2015).
145. Id. § 668.46(j)(2)(iv) (emphasis added).
2016] THE SEX BUREAUCRACY 913
146. Id. § 668.46(j)(1)(i)(E). Risk reduction means “options designed to decrease perpetration
and bystander inaction, and to increase empowerment for victims in order to promote safety and to
help individuals and communities address conditions that facilitate violence.” Id. § 6668.46(j)(2)(v).
147. Violence Against Women Act, 79 Fed. Reg. 35,418, 35,427 (proposed Jun. 20, 2014)
(codified at 34 C.F.R. § 668 (2015)) (emphasis added). Similarly, the negotiators participating in the
rulemaking “stressed the need to move away from programs that inappropriately place the burden on
individuals to protect themselves, instead of focusing on ways to reduce the risk of perpetration.” Id.
148. Sexual Violence, CTRS. FOR DISEASE CONTROL & PREVENTION (2004),
http://www.cdc.gov/violenceprevention/sexualviolence/index.html [https://perma.cc/3BLJ-26KT].
149. Sexual Violence: Risk and Protective Factors, CTRS. FOR DISEASE CONTROL &
PREVENTION, http://www.cdc.gov/violenceprevention/sexualviolence/riskprotectivefactors.html
[https://perma.cc/Z7E3-3SQW] (last updated Feb. 10, 2015). VAWA Regulations require schools’
prevention programs to “[c]onsider environmental risk and protective factors as they occur on the
individual, relationship, institutional, community, and societal levels.” 34 C.F.R. § 668.46(a).
150. Sexual Violence: Risk and Protective Factors, supra note 149.
151. See id. The CDC also draws on the World Health Organization’s Report, which it relies on
for its discussion of community and societal risk factors. Id. (citing Rachel Jewkes, Purna Sen &
Claudia Garcia-Moreno, Sexual Violence, in WORLD REPORT ON VIOLENCE AND HEALTH 159
(Etienne G. Krug et al. eds., 2002)).
152. Sexual Violence: Risk and Protective Factors, supra note 149.
914 CALIFORNIA LAW REVIEW [Vol. 104:881
153. The CDC has altered its sexual violence website. For a comparison and prior version, see
Sexual Violence: Risk and Protective Factors, CTRS. FOR DISEASE CONTROL & PREVENTION,
https://web.archive.org/web/20140331050420/http://www.cdc.gov/violenceprevention/sexualviolence/
riskprotectivefactors.html. For similar language, see also Jewkes, Sen & Garcia-Moreno, supra note
151, at 159.
154. Sexual Violence: Risk and Protective Factors, supra note 149.
155. Id. As the CDC notes, “[f]ew programs, to date, have been shown to prevent sexual
violence perpetration. A systematic review conducted by CDC’s Injury Center identified only three
programs that have been shown, using a rigorous evaluation methodology, to prevent sexual violence
perpetration.” Sexual Violence: Prevention Strategies, CTRS. FOR DISEASE CONTROL & PREVENTION,
http://www.cdc.gov/violenceprevention/sexualviolence/prevention.html [https://perma.cc/AW79-
S6MF] (last updated Feb. 5, 2016).
156. The CDC highlighted that one type of intervention strategy is programming “aimed at
those who are thought to have a heightened risk for sexual violence perpetration or victimization.”
CTRS. FOR DISEASE CONTROL & PREVENTION, SEXUAL VIOLENCE PREVENTION: BEGINNING THE
DIALOGUE 7 (2004), http://www.cdc.gov/violenceprevention/pdf/svprevention-a.pdf [https://perma.cc
/2LUL-9CWT].
157. Sexual Violence: Risk and Protective Factors, supra note 149.
158. See infra text accompanying notes 290–304 (discussing racial impact of student
discipline).
2016] THE SEX BUREAUCRACY 915
prevention programs to be targeted to the groups the CDC’s risk factors suggest
are more likely to be perpetrators? That would presumably require the
identification of these students and either enhanced monitoring or targeted
education measures that seek to “increase audience knowledge and share
information and resources to prevent violence, promote safety, and reduce
perpetration.”159 Given the considerable discretion and elasticity in
constructions of key concepts like nonconsent, unwelcome, unwanted, or
undesirable, as well as the common feelings of ambivalence in human sexual
experience, this sort of precriminalization may create (if not mandate) a serious
risk of race discrimination in the effort to prevent sexual violence.
Consider two additional risk factors: hyper-masculinity and coercive
sexual fantasies.160 According to the source the CDC cites as support, hyper-
masculinity consists of two factors: membership in a fraternity, and sports
participation.161 A plausible reading of the federal requirement that schools
address the CDC’s risk factors is that schools must make clear through ongoing
education programs that fraternity members and student athletes are more
likely to be perpetrators of sexual violence. While the majority of student
athletes in the country are white, on a predominantly white college campus, a
minority presence of poor black men on scholarships may be concentrated in
the school’s sports teams.162 Combining the CDC risk factors of hyper-
masculinity, poverty, and lack of institutional support from police and judicial
systems creates a significant risk of precriminalizing minority men.
As for coercive sexual fantasies, when one reads the systematic review
conducted by the CDC regarding risk factors for sexual violence, the actual
source cited claims that sexual fantasies per se are associated with sexual
violence—not just coercive sexual fantasies.163 Some of the studies cited
involve asking convicted sex offenders, convicted non-sex offenders, and
college males about their sexual fantasies. The evidence from the CDC’s
source indicates that college males have higher rates of virtually all variants of
sexual fantasy, coercive or noncoercive, than convicted sex offenders and non-
sex offenders.164 But setting aside the gap between the CDC’s conclusions and
the studies on which it relies, what does it mean to mandate that university
prevention policies address risk factors like exposure to sexually explicit
media, sexual fantasies, and preferences for impersonal sex? The federal
government now requires schools to be involved in constructing sexual norms
and putting a stamp of disapproval on sexual practices like impersonal sex,
pornography, and sexual fantasies.
The CDC risk factors also figure in prevention policies outside of higher
education. For example, the Department of Defense (DOD) Sexual Assault
Prevention and Response Office (SAPRO) adopted the CDC’s “Sexual
Violence Risk Factors” almost verbatim after a CDC briefing to SAPRO in
November 2013.165 The DOD implemented both the CDC’s public health
model in general and the CDC risk factors in particular. Colleges and
universities have followed suit and developed prevention policies that take into
account CDC risk factors.166
2. My Brother’s Keeper
Both statutory167 and regulatory168 language require primary prevention
and awareness programs to include “bystander intervention” elements as part of
the campaign to make sexual violence a community responsibility. The White
House Task Force to Protect Students from Sexual Assault explains that
“[r]esearch on the causes of sexual violence and evaluation of prevention
efforts indicates that bystanders (also referred to as witnesses, defenders, or
upstanders) are a key piece of prevention work.”169 These programs tend to
Bystander intervention programs seek to produce the sense that we are all
implicated in the sexual environment and in protosexual interactions taking
place around us. Responsibility for the potential sexual interactions
surrounding us belongs to us all. There are no innocent bystanders, and perhaps
no fully innocent interactions, because nonproblematic sexual behaviors can
become problematic. We all must monitor the sexual environment to see if we
can investigate and intervene. We are all part of the sex bureaucracy.
D. Making by Measuring
One of the laudable components of the sex bureaucracy’s regulatory
approach has been a renewed emphasis on research. Accurate statistics
regarding the incidence of sexual assault on campus and in society have long
been difficult to obtain. Between problems of underreporting and varying
definitions of sexual assault, ascertaining the scope and scale of sexual assault
is a challenge.175 Accurate data about what is occurring and why is critical. To
that end, the White House Task Force issued a call for all universities to
conduct a campus climate survey and provided a toolkit to help universities
design their surveys.176 Following that call, universities across the country have
performed or are now performing sexual climate surveys. Although these
surveys vary, the American Association of Universities (AAU) survey,
developed and implemented by twenty-six colleges and universities, is the most
common.177 The AAU survey uses much, but not all, of the White House Task
Force model survey. The results from these surveys are being analyzed and a
good deal of useful information has already entered the public debate.
Our goal in this Section is not to critique any particular survey instrument,
but rather to explore the ways in which the design of campus climate surveys
peer who believed the accused student raped the alleged victim, after seeing a hickey on her neck
and watching them interact, even though the peer did not witness the sexual encounter and the
alleged victim stated the sex was consensual. Complaint, Neal v. Colo. State Univ.-Pueblo et al,
No. 1:16-cv-00873 (D. Colo. April 19, 2016). One wonders whether bystanders who fail to
intervene may be charged with sexual misconduct.
175. See ESTIMATING THE INCIDENCE OF RAPE AND SEXUAL ASSAULT 26, 36 (Candace
Kruttschnitt et al. eds., 2014).
176. See WHITE HOUSE TASK FORCE TO PROTECT STUDENTS FROM SEXUAL ASSAULT, NOT
ALONE: THE FIRST REPORT OF THE WHITE HOUSE TASK FORCE TO PROTECT STUDENTS FROM
SEXUAL ASSAULT 8 (2014), https://www.whitehouse.gov/sites/default/files/docs/report_0.pdf
[https://perma.cc/C8VU-JPWF] (calling on colleges and universities to voluntarily complete campus
climate surveys). The task force also provided a “toolkit” for those colleges that elected to conduct
climate surveys. See Climate Surveys: Useful Tools to Help Colleges and Universities in Their Efforts
to Reduce and Prevent Sexual Assault, NOT ALONE, https://www.notalone.gov/assets/ovw-climate-
survey.pdf [https://perma.cc/W8EA-D382] [Campus Climate Survey Toolkit].
177. See AAU Campus Survey on Sexual Assault and Sexual Misconduct, ASS’N AM. UNIVS.,
http://www.aau.edu/Climate-Survey.aspx?id=16525 [https://perma.cc/96TM-7KDQ] (last visited Apr.
3, 2016); see also DAVID CANTOR ET AL., ASS’N OF AM. UNIVS., REPORT ON THE AAU CAMPUS
CLIMATE SURVEY ON SEXUAL ASSAULT AND SEXUAL MISCONDUCT (Sept. 21, 2015),
http://www.aau.edu/uploadedFiles/AAU_Publications/AAU_Reports/Sexual_Assault_Campus_Surve
y/AAU_Campus_Climate_Survey_12_14_15.pdf [https://perma.cc/748T-9DUE].
2016] THE SEX BUREAUCRACY 919
helps construct the sexual norms and perceptions that the survey purports to
measure. To be sure, the call for research is partially motivated by a desire to
gather information, but it also communicates a message about sexual conduct
and sexual norms. “Conducting a climate survey can demonstrate the
university’s commitment to addressing sexual assault and build trust with
students, faculty, parents, and others.”178 Asking students about their sexual
conduct is part of the formation of the campus sexual climate. As a stark
example, if a survey instrument were titled, “Sexual Violence and Institutional
Betrayal,” as it was at the University of Oregon,179 it would seem clear that
something more than mere research were occurring. We are constructing a
sexual environment in the course of attempting to measure it. This is not to say
that we should not do sexual violence surveys—only that we should be
cognizant of how the call for research relates to other components of the sex
bureaucracy. The new sexual climate surveys attempt to estimate the
background level of risk, but in so doing they also construct the perception and
understanding of this risk. The survey instrument suggested by the government
is part of the regulatory regime that articulates and attempts to alter norms and
understandings about sex and desire. Risk estimation and data gathering merge
with the active construction of contested concepts that shape the experience
and meaning of sexual conduct.
Consider some illustrations. An inevitable choice for any survey is
whether to define the terms the survey is asking about. This is particularly true
in an area where terms carry varied and changing legal and social meanings.
The Massachusetts Institute of Technology (MIT) survey, for example, uses the
terms “sexual assault” and “sexual violence” at various points in its climate
survey, but does not define the terms.180 Both the White House Task Force
model survey and the AAU survey do define the terms. The model White
House survey defines sexual violence as follows:
Sexual violence refers to a range of behaviors that are unwanted by
the recipient and include remarks about physical appearance;
persistent sexual advances that are undesired by the recipient;
unwanted touching; and unwanted oral, anal, or vaginal penetration
or attempted penetration. These behaviors could be initiated by
someone known or unknown to the recipient, including someone
they are in a relationship with.181
182. The Rutgers Sample survey is another commonly cited resource. See #iSPEAK: Rutgers
Campus Climate Survey, RUTGERS SCH. SOC. WORK (Nov. 2014),
http://socialwork.rutgers.edu/Libraries/VAWC/new_doc_to_upload_for_ispeak.sflb.ashx
[https://perma.cc/FGW5-6GPE]. The Rutgers survey uses the preamble:
“Sexual assault” and “sexual violence” refer to a range of behaviors that are unwanted by the
recipient and include remarks about physical appearance, persistent sexual advances that are
undesired by the recipient, threats of force to get someone to engage in sexual behavior, as well as
unwanted touching and unwanted oral, anal or vaginal penetration or attempted penetration. These
behaviors could be initiated by someone known or unknown to the recipient, including someone
they are in a relationship with.
Id. at 6.
183. ASS’N OF AM. UNIVS., SURVEY QUESTIONNAIRE: REPORT ON THE AAU CLIMATE
SURVEY ON SEXUAL ASSAULT AND SEXUAL MISCONDUCT 7 (2015),
http://www.aau.edu/uploadedFiles/AAU_Publications/AAU_Reports/Sexual_Assault_Campus_Surve
y/Survey%20Instrument.pdf [https://perma.cc/K3VJ-CKVS] (emphasis added).
2016] THE SEX BUREAUCRACY 921
The MIT non-defining approach produces data that are likely less reliable
because what is meant by sexual assault will vary across individuals. But the
process of defining is a process of creating meaning and social understandings.
That is inevitable. To the extent that sexual climate surveys educate students
about what (the surveyor or government believes) sexual misconduct is, these
instruments are another part of the sexual education and reform program,
altering (not merely measuring) understandings about what sex is ordinary and
what sex is misconduct. The surveys push these understandings in a particular
direction—toward more expansive definitions of sexual violence.
Consider the interaction between the ideas of nonconsensual sexual
contact and of unwanted sexual contact. The model survey sometimes starts
with a phrase like “nonconsensual or unwanted sexual contact,” but then
quickly drops the language of nonconsent, using unwanted as a stand-in:
This section asks about nonconsensual or unwanted sexual contact
you may have experienced. When you are asked about whether
something happened since [TIMEFRAME], please think about what
has happened since [TIMEFRAME]. The person with whom you had
the unwanted sexual contact could have been a stranger or someone
you know, such as a family member or someone you were dating or
going out with. These questions ask about five types of unwanted
sexual contact . . . .184
In the model survey, unwanted simply becomes the marker of sexual violence.
Consent, as a word and as a concept, fades. In terms of data reliability, treating
these terms in the same breath has the effect of measuring the incidence as an
aggregation of nonconsensual and unwanted sexual contact. More importantly,
it contributes to individual and ultimately social understandings that unwanted
is the same thing as nonconsensual—that we should feel similarly about
unwanted sexual contact and nonconsensual sexual contact.
So too in the AAU survey, whose Risk Perception questions ask about
“sexual assault or sexual misconduct” after defining the terms as noted above.
The AAU survey also asks much more focused and directed questions about
the use or threat of physical force to achieve or attempt to achieve “[s]exual
penetration” or “[o]ral sex,” each of which is carefully defined.185 This would
seem to be an attempt to focus on nonconsensual sexual contact with the use or
threat of physical force. Yet the introduction to these questions reads as
follows:
This next section asks about nonconsensual or unwanted sexual
contact you may have experienced while attending [University]. The
person with whom you had the nonconsensual or unwanted contact
184. Campus Climate Survey Toolkit, supra note 176, at 23 (emphasis added).
185. ASS’N OF AM. UNIVS., SURVEY QUESTIONNAIRE, supra note 183, at 26 (“Sexual
penetration. When one person puts a penis, fingers, or object inside someone else’s vagina or anus . . .
Oral sex. When someone’s mouth or tongue makes contact with someone else’s genitals.”).
922 CALIFORNIA LAW REVIEW [Vol. 104:881
could have been someone you know, such as someone you are
currently or were in a relationship with, a coworker, a professor, or a
family member. Or it could be someone you do not know.
The following questions separately ask about contact that occurred
because of physical force, incapacitation due to alcohol or drugs, and
other types of pressure.186
Thus, even when asking about physical force or incapacitation, the survey
merges the ideas of nonconsent and unwantedness. The MIT survey, with a few
exceptions, dispenses with the idea of nonconsent entirely and asks directly
about “unwanted sexual behavior.”187
This conflation of nonconsent and unwantedness matters because many
people, regardless of gender and sexual orientation, have consensual sex that is
unwanted. Sometimes it is partially unwanted, not fully wanted, or both wanted
and unwanted at the same time, in contexts ranging from single hookups to
longstanding relationships and marriages. Ambivalence—simultaneously
wanting and not wanting, desire and revulsion—is endemic to human sexuality.
It is far from clear today that having unwanted sexual contact is morally,
psychologically, or practically equivalent to having nonconsensual sex.188
Furthermore, the psychological line between “I did not want that to happen”
and “I want that not to have happened” can be thin. The AAU and the model
survey’s questions are making a claim that nonconsensual and unwanted are or
ought to be treated the same, for purposes of policy, individual and social
experience, and memory.
Asking students about their sexual encounters in this way constructs how
students understand their sexual experiences and transforms the meaning of
some sexual conduct into misconduct, by way of measuring how much sexual
violence exists. Whether this is desirable or undesirable, it is important to
recognize the regulatory effects of the sexual conduct surveys apart from the
project of gathering knowledge.
The public debates about schools’ handling of campus rape complaints
and about the prevalence of sexual violence on campus operate with the
impression that the subject matter being addressed is, at its core, rape or violent
assault. The phrase “one in five” that accompanies the common language of
186. Id.
187. MASS. INST. TECH., supra note 180.
188. It is of course not legally equivalent either. See, e.g., Stephen J. Schulhofer, Rape in the
Twilight Zone: When Sex Is Unwanted but Not Illegal, 38 SUFFOLK U. L. REV. 415 (2005) (noting
various instances where unwanted sex was not illegal, and arguing for more aggressive criminal laws
to address unwanted sex); see also Michal Buchhandler-Raphael, The Failure of Consent: Re-
Conceptualizing Rape as Sexual Abuse of Power, 18 MICH. J. GENDER & L. 147, 183 (2011)
(“[U]nder consent models, viewing consent to sex merely as permission or authorization fails to
criminalize an array of sexual abuses in which consent is merely apparent. Sexual abuses of power in
the workplace, academia, and other professional and institutional settings are the most prominent
examples in which obtaining passive submission to unwanted sexual demands is not recognized as
warranting criminal sanctions.”).
2016] THE SEX BUREAUCRACY 923
“epidemic” is part statistic and part rallying cry.189 Whether that number is
inflated or deflated has been the subject of extensive public debate and it is not
our subject here.190 We do, however, wish to point to a shift in the vocabulary
used to describe that statistic—a shift related to the instability of what surveys
are measuring and the federal government is regulating. A feature on the
Washington Post’s website contains the heading: “College Sexual Assault: 1 in
5 College Women Say They Were Violated.”191 The first sentence of the article
reads: “Twenty percent of young women who attended college during the past
four years say they were sexually assaulted, according to a Washington Post-
Kaiser Family Foundation poll.”192 Participants in the public debate sometimes
use the terms “sexual assaulted” and “violated” interchangeably.193 To what
extent has the federal bureaucracy moved to implement understandings similar
to those Catharine MacKinnon expressed in 1987, “Politically, I call it rape
whenever a woman has sex and feels violated”?194
***
Sex regulation has become a domain of the federal bureaucracy. A crime-
reporting regime has resulted in a bundle of policies and procedural
189. See, e.g., Kyle Lierman, It’s On Us, a Growing Movement to End Campus Sexual Assault,
WHITE HOUSE BLOG (Sept. 24, 2014, 3:00 PM), https://www.whitehouse.gov/blog/2014/09/24/its-us-
growing-movement-end-campus-sexual-assault [https://perma.cc/HH3N-57VF] (invoking the figure
as statistic and rallying cry); see also Libby Nelson, ‘1 in 5’: How a Study of 2 Colleges Became the
Most Cited Campus Sexual Assault Statistic, VOX (Dec. 11, 2014, 2:00 PM),
http://www.vox.com/2014/12/11/7377055/campus-sexual-assault-statistics [http://perma.cc/Q2Q2-
CCM2].
190. See also Matthew J. Breiding et al., Prevalence and Characteristics of Sexual Violence,
Stalking, and Intimate Partner Violence Victimization—National Intimate Partner and Sexual
Violence Survey, United States, 2011, CTRS. FOR DISEASE CONTROL & PREVENTION (Sept. 5, 2014),
http://www.cdc.gov/mmwr/preview/mmwrhtml/ss6308a1.htm [https://perma.cc/Y5HR-LAND] (“In
the United States, an estimated 19.3 percent of women and 1.7 percent of men have been raped during
their lifetimes; an estimated 1.6 percent of women reported they were raped in the twelve months
preceding the survey.”). As alluded to in the text, the methodology and implications of such studies
have been the subject of debate. See Christina Hoff Sommers, CDC Study on Sexual Violence in the
U.S. Overstates the Problem, WASH. POST (Jan. 27, 2012),
https://www.washingtonpost.com/opinions/cdc-study-on-sexual-violence-in-the-us-overstates-the-
problem/2012/01/25/gIQAHRKPWQstory.html [https://perma.cc/E6A6-WPJR] (criticizing an earlier
CDC survey on intimate partner and sexual violence as overstating the problem based on questionable
methodology); Cathy Young, The CDC’s Rape Numbers Are Misleading, TIME (Sept. 17, 2014),
http://time.com/3393442/cdc-rape-numbers [http://perma.cc/N9HP-T8QW] (“[W]hen asked about
experiences in the past twelve months, men reported being ‘made to penetrate’—either by physical
force or due to intoxication—at virtually the same rates as women reported rape (both 1.1 percent in
2010, and 1.7 and 1.6 respectively in 2011).”).
191. Nick Anderson & Scott Clement, 1 in 5 College Women Say They Were Violated, WASH.
POST (June 12, 2015), http://www.washingtonpost.com/sf/local/2015/06/12/1-in-5-women-say-they-
were-violated [https://perma.cc/VR3N-XR6P].
192. Id.
193. See, e.g., Laura Beck, 1 in 5 College Women Say They Were Sexually Violated,
COSMOPOLITAN (June 14, 2015), http://www.cosmopolitan.com/college/news/a41953/washington-
post-kaiser-family-foundation-poll [https://perma.cc/35UP-C5ZW].
194. MACKINNON, supra note 105, at 82.
924 CALIFORNIA LAW REVIEW [Vol. 104:881
III.
BUREAUCRATS OF DESIRE
The sex bureaucracy has conscripted colleges and universities as
bureaucrats of desire. Within each of their mini-bureaucracies, college sex
bureaucrats understand their regulation endeavors as federal legal compliance.
These sex bureaucracies are not simply training students on the rules of rape,
sexual assault, and sexual harassment. They are instructing students on matters
such as what is “sexy,” what constitutes “great sex,” what are “positive
relationships,” and the like. They are instructing on, advising on, counseling
on, defining, monitoring, investigating, and adjudicating questions of sexual
desire.
195. This parallels a development in the Title VII context. To escape vicarious liability for
sexual or racial harassment by employees, private firms implemented policies and procedures to
demonstrate that they had done all that they could to prevent and respond to any harassment. See
Lauren B. Edelman, Legal Environments and Organizational Governance: The Expansion of Due
Process in the American Workplace, 95 AM. J. SOC. 1401, 1435 (1990) (“[The] expansion of due
process in organizational governance is an institutionalized response to threats posed by the legal
environment.”); see also Lauren B. Edelman et al., Diversity, Rhetoric and the Managerialization of
Law, 106 AM. J. SOC. 1589, 1609–12, 1610 fig.1 (2001); Lauren B. Edelman et al., When
Organizations Rule: Judicial Deference to Institutionalized Employment Structures, 117 AM. J. SOC.
888, 893–95 (2011).
2016] THE SEX BUREAUCRACY 925
folded into the consent rubric a set of normative views on good sex and good
relationships. Sexual violence education and prevention programming is
rapidly morphing into sex instructions reminiscent of guidance provided by sex
therapists like Dr. Ruth. This jibes well with the public health framework that
has so strongly influenced the federal regulatory orientation to sexual violence.
Since the sex bureaucracy’s role is regulating health and safety, explanations of
consent easily lead to instructions about what is “healthy” or “positive” in sex
and relationships. Within the broad health rubric, schools promote normative
relationship values, such as respect, honesty, care for feelings, and
nontraditional sex roles. All of this serves the sex bureaucracy’s construction of
an acceptable framework for the expression and gratification of sexual desire.
The distinction between “consensual sex” and “good sexual relationships”
is eroding. For example, here is a smattering of instructions to students from
Brown University’s Health Services: “Communication, respect, and honesty
are fundamental to great sex and relationships.”; “Positive views on sex and
sexuality are empowering.”; “Consent is not just about getting a yes or no
answer, but about understanding what a partner is feeling.”196 The school
advises students before having sex to consider whether “[e]ach person is
positive and sincere about their desires.”197
Yale University disclosed in its required 2013 ASR that its prevention
program tells students that consent is not enough: “Hold out for enthusiasm. In
general, it’s easy to tell if someone is enthusiastic about an encounter or
not.”198 In complying with the prevention program disclosure requirement, and
purporting to prevent nonconsensual sexual contact, Yale instructs students on
enthusiastic sex. Students are told to “[c]ommunicate with [their] sexual and
romantic partners,” as “[o]pen discussion of desires and limits is a critical part
of building a positive sexual culture.”199 A positive sexual culture, open
discussion of sexual desires, communication with romantic partners, and
enthusiastic sex all seem like good sexual aspirations, though perhaps achieved
by quite few. But these are not trainings about how to prevent sexual violence.
They are instructions on how to have ordinary (or extraordinary) sex, and they
are produced and monitored by the sex bureaucracy.
Georgia Southern University explains in its 2015 Annual Security Report
definition of consent, which goes significantly further than even affirmative
consent: “Consent is a voluntary, sober, imaginative, enthusiastic, creative,
204. Id.
205. See Sexual Respect, COLUM. U., http://sexualrespect.columbia.edu [http://perma.cc/5CJJ-
PETJ] (last visited Apr. 3, 2016); Sexual Respect, GRINNELL C., https://www.grinnell.edu
/sexualrespect [https://perma.cc/63JQ-M3KY] (last visited Apr. 3, 2016).
206. See Sexual Respect, COLUM. U., supra note 205.
207. Consent Is Sexy, supra note 201 (emphasis added).
208. See supra text accompanying notes 99–102.
209. Denise A. Hines & Kathleen Palm Reed, Consent 101 or: Doing It with the Lights On,
CLARK U., http://www.clarku.edu/offices/cave/consent [https://perma.cc/YFT9-EQJL] (last updated
Mar. 2010).
210. AM. UNIV., supra note 171, at 31.
928 CALIFORNIA LAW REVIEW [Vol. 104:881
211. Id.
212. Note also that the sex bureaucracy applies directly to K-12 education through Title IX, and
thus the behavior of children and teenagers is increasingly subject to a sexual violence lens. From 2014
to 2015, the number of OCR complaints filed against K-12 schools for mishandling reports of sexual
violence tripled. See Emma Brown, Sexual Violence Isn’t Just a College Problem. It Happens in K-12
Schools, Too., WASH. POST. (Jan. 17, 2016), https://www.washingtonpost.com/local/education/sexual-
violence-isnt-just-a-college-problem-it-happens-in-k-12-schools-too/2016/01/17/a4a91074-ba2c-11e5-
99f3-184bc379b12d_story.html [https://perma.cc/4RJX-D7RK].
213. UNIV. OF WYO., WHERE IS YOUR LINE: CONSENT IS SEXY,
http://www.uwyo.edu/stop/resources/10_stop_consent_sexy_booklet.pdf [https://perma.cc/45FK-
BQRQ] (last visited Apr. 3, 2016).
214. Id. at 3 (emphasis added).
215. Id. at 2.
216. Id.
217. Id. at 3.
2016] THE SEX BUREAUCRACY 929
218. Id. at 5.
219. Id.
220. UNIV. OF CAL., SAN DIEGO, 2014 ANNUAL SECURITY REPORT 15 (2014) (emphasis
added), https://web.archive.org/web/20150607150349/http://police.ucsd.edu/docs/AnnualClery.pdf
[https://perma.cc/8PL4-ATFE].
221. Surely many schools produced some educational materials on healthy sex and
relationships prior to or independent of the federal requirements that now frame such materials. Those
materials now exist under the auspices of the sex bureaucracy’s reporting, prevention, and discipline
regimes.
222. UNIV. OF WYO., supra note 213, at 6.
223. Id. (emphasis added).
930 CALIFORNIA LAW REVIEW [Vol. 104:881
sex bureaucracy, direct students to have sex that reflects a familiar set of
normative marriage-like ideals.
The ideals are often built into the definitions of consent disclosed in many
federally required Annual Security Reports, whose purpose is to report campus
crime. Breaches of these standards are supposed to lead to discipline, in
accordance with the Department of Education’s requirements. Crossing the
consent line is supposed to trigger investigation and adjudication, as required
by the federal bureaucracy. A number of schools have defined consent for
disciplinary purposes to include enthusiasm and other markers of desire.224 For
example, Elon University’s 2013 ASR reports: “Only a comprehensible,
unambiguous, positive and enthusiastic communication of consent for each
sexual act qualifies as consent.”225 Anything else is sexual assault. These
definitions of consent to mean enthusiastic agreement or sober agreement and
the like raise the question whether the sex bureaucracy will indeed investigate
and discipline students for having sex when the agreement was unenthusiastic
or tipsy.
We have seen notions of nonconsent transform rapidly, from traditional
criminal notions of overcoming resistance and acting against someone’s will, to
regulatory notions of a lack of affirmative agreement, to unwantedness and
undesirability. The consent line moves further with each crop of students across
the country taught that they should seek not just agreement to engage in sex but
also enthusiasm and excitement. When sexual violence prevention programs
teach that sexual assault is anything other than enthusiastic, excited, creative,
and imaginative sexual agreement, a disciplinary remedy for sex that is none of
those things will be expected as well. In the interlocking system of required
reporting, prevention, and discipline, the question of desire is now squarely in
the purview of the sex bureaucracy. How much further will it go in regulating
sexual desire?
The conduct classified as illegal by the sex bureaucracy has grown
substantially, and indeed, it plausibly covers almost all sex students are having
today. But is this a problem? Stephen Schulhofer, Reporter for the American
Law Institute’s Model Penal Code revisions on sexual assault, has compared
affirmative consent rules that would render most people’s sex lives illegal to a
speed limit that one expects to be routinely violated and yet enhances overall
224. See, e.g., GORDON COLL., SAFETY & SECURITY AT GORDON COLLEGE 2014–2015, at 12
(“Consent is a voluntary, sober, enthusiastic, informed, mutual, honest and verbal agreement.”)
(emphasis added) (on file with authors); see also COASTAL CAROLINA COLL., SEXUAL VIOLENCE
AND TITLE IX 8 (2015) (specifying that consent is “enthusiastic”),
https://www.coastal.edu/media/studentaffairs/counselingservices/pdfs/SA%20Sexual%20Violence%2
0booklet%20WEB%20Jul14.pdf [http://perma.cc/Y6CX-FYE2]; Types of Sexual Assault, MARSHALL
U., https://www.marshall.edu/wcenter/sexual-assault/types-of-sexual-assault [https://perma.cc/GBV5-
JG25] (last visited Apr. 3, 2016).
225. ELON UNIV., ANNUAL SECURITY REPORT 2013, at 8 (2014), http://www.elon.edu/docs/e-
web/bft/safety/Elon%20University%20ASR%202013.pdf [https://perma.cc/FE76-WUME].
2016] THE SEX BUREAUCRACY 931
safety.226 If “people know what the rules of the road are . . . the overwhelming
majority will comply with them.”227 The rise of this type of reasoning
complements the ratcheting process we have seen in the sex bureaucracy, in
which commonsense advice about how to be safe evolves into the legal
prohibition itself.
As nonconsent became the distinguishing feature of illegal sex, schools,
parents, advocacy organizations, and the government gave commonsense
advice: if there is any ambiguity about consent, stop. Don’t take the absence of
a no to mean consent. Out of an abundance of caution, avoid ambiguity, get a
yes, and avoid the cliff of nonconsent and sexual assault. In short order,
however, the extra-cautious strategy of steering clear of the cliff became the
new legal definition of consent. Once the line moved, commonsense advice
was again to stay well clear of the edge: do not settle for a nod, a smile, or even
a yes. Make sure the yes is enthusiastic. This was more than consent,
supposedly creating a buffer from the risk of sexual assault. Very rapidly,
however, the consent line shifted again to make enthusiasm a requirement of
consent itself—anything less than enthusiasm is sexual assault. At each point,
an attempt to remain a healthy distance from the cliff’s edge results in a change
in where the cliff is. This is a process of legal erosion such that what was
considered ordinary sex is regulated in ways that are unstable and uncertain.
And as the context of highway stops for exceeding speed limits that nobody
follows has shown, vagueness and over-inclusiveness means a likely
disproportionate impact on minorities for conduct in which most people
routinely engage.228
B. DOE Process
Accompanying the elevation of consent to enthusiasm, excitement,
creativity, and desire is a corresponding set of institutional procedures to
discipline sexual misconduct. The 2011 Dear Colleague Letter announced that
to satisfy Title IX, schools’ policies and procedures had to meet specific
criteria of which schools had not theretofore been aware.229 Although the DCL
was fashioned as a guidance document that itself did not impose any new
binding legal obligations, OCR initiated investigations into dozens of schools
for noncompliance with Title IX,230 utilizing interpretations and requirements
specified only in the DCL. The explicit threat was (and remains) to terminate
231. See Ali, Dear Colleague Letter, supra note 80, at 16.
232. In 2015, the American Law Institute began its own project to examine “college and
university procedures surrounding allegations of sexual misconduct on campus.” Vicki Jackson to
Serve on ALI’s Project on Campus Sexual Assault, HARV. L. TODAY (Feb. 25, 2015),
http://today.law.harvard.edu/vicki-jackson-serve-alis-project-campus-sexual-assault
[https://perma.cc/Z6HE-8M8W]. On the state level, Virginia has proposed a $100,000 study to
determine how to “design a pilot program to create a regional center for the investigation of incidents
of sexual and gender-based violence,” in part because smaller institutions who could not have a full-
time staff of professional investigators. Jake New, Investigating Sexual Assault, Regionally, INSIDE
HIGHER ED (Jan. 25, 2016), https://www.insidehighered.com/news/2016/01/25/virginia-may-create-
regional-center-investigating-sexual-assaults [https://perma.cc/SDH6-PFUP].
233. See Allie Grasgreen, Tide Shifts on Title IX, INSIDE HIGHER ED. (Apr. 24, 2012),
https://www.insidehighered.com/news/2012/04/24/ocr-dear-colleague-letter-prompts-big-change-
sexual-assault-hearings-unc [https://perma.cc/F588-9F2S].
234. HARVARD UNIV., SEXUAL AND GENDER-BASED HARASSMENT POLICY: POLICY
STATEMENT, supra note 104.
235. HARVARD UNIV., PROCEDURES FOR HANDLING COMPLAINTS INVOLVING STUDENTS
PURSUANT TO THE SEXUAL AND GENDER-BASED HARASSMENT POLICY (July 1, 2014),
https://hls.harvard.edu/content/uploads/2014/09/harvard_sexual_harassment_procedures_student1.pdf
[https://perma.cc/W86K-YPVZ].
236. See id.
2016] THE SEX BUREAUCRACY 933
237. Rethink Harvard’s Sexual Harassment Policy, BOS. GLOBE (Oct. 15, 2014),
https://www.bostonglobe.com/opinion/2014/10/14/rethink-harvard-sexual-harassment-
policy/HFDDiZN7nU2UwuUuWMnqbM/story.html [https://perma.cc/HW92-X4GC]; see also Nancy
Gertner, Sex, Lies, and Justice, AM. PROSPECT (Jan. 12, 2015), http://prospect.org/article/sex-lies-and-
justice [http://perma.cc/QR2U-BB7X] (arguing that Harvard University’s Title IX disciplinary process
is one-sided and offering Oberlin’s Title IX disciplinary process, a “symmetrical due process”
proceeding, as an illustrative counterexample). But see Alexandra Brodsky, Fair Process, Not
Criminal Process, Is the Right Way to Address Campus Sexual Assault, AM. PROSPECT (Jan. 21,
2015), http://prospect.org/article/fair-process-not-criminal-process-right-way-address-campus-sexual-
assault [http://perma.cc/AJ2M-4SEF] (arguing that DOE Title IX protections provide more protection
for the accused than may otherwise be in place; asserting that “any continued failures [in protecting the
accused] . . . are the fault not of the law but of schools’ refusal to follow it”).
238. See Letter from Joel J. Berner, Reg’l Dir., Office for Civil Rights, U.S. Dept. of Educ., to
Dean Martha C. Minow, Harvard Law Sch. 1, 3, 7 (Dec. 30, 2014),
http://www2.ed.gov/documents/press-releases/harvard-law-letter.pdf [http://perma.cc/LC8H-NL2F].
239. See id.
240. Harvard Law School Found in Violation of Title IX, Agrees to Remedy Sexual
Harassment, Including Sexual Assault of Students, U.S. DEP’T. EDUC. (Dec. 30, 2014),
http://www.ed.gov/news/press-releases/harvard-law-school-found-violation-title-ix-agrees-remedy-
sexual-harassment-including-sexual-assault-students [http://perma.cc/P4SF-T9FK].
934 CALIFORNIA LAW REVIEW [Vol. 104:881
241. See HARVARD LAW SCH., HLS SEXUAL HARASSMENT RESOURCES AND PROCEDURES
FOR STUDENTS (2014), http://hls.harvard.edu/content/uploads/2015/07/HLSTitleIXProcedures
150629.pdf [https://perma.cc/F72Z-KK8W].
242. Id. at 5–7.
243. Cf. Napolitano, supra note 8, at 400 (“Colleges and universities are devoting significant
resources to setting up new systems to respond to incidents of sexual violence.”).
244. See supra, Part II.B.3.
245. A map of Title IX resolutions features prominently on notalone.gov.
246. See Napolitano, supra note 8, at 400.
247. See NCHERM GRP., LLC, AN OPEN LETTER TO HIGHER EDUCATION ABOUT SEXUAL
VIOLENCE FROM BRETT A. SOKOLOW, ESQ. AND THE NCHERM GROUP PARTNERS (May 27, 2014),
https://www.ncherm.org/wordpress/wp-content/uploads/2012/01/An-Open-Letter-from-The-
NCHERM-Group.pdf [https://perma.cc/W8BA-P4PF].
2016] THE SEX BUREAUCRACY 935
248. W. SCOTT LEWIS ET AL., NCHERM GROUP, LLC AND ATIXA, EQUITY IS SUCH A
LONELY WORD: THE 2014 WHITEPAPER 3, https://uminfopoint.umsystem.edu/media/hr/titleix/2014-
Whitepaper-FINAL.pdf [https://perma.cc/Y2DX-7VTA].
249. See The ATIXA Investigation in a Box Kit, ATIXA,
https://atixa.org/resources/investigation-in-a-box [http://perma.cc/8GHX-RVMN] (last visited Apr. 3,
2016).
250. Ali, Dear Colleague Letter, supra note 80, at 12.
251. See Letter from Bhargava, supra note 107, at 4.
252. See text accompanying notes 99–102.
253. See, e.g., Complaint, Doe v. Lhamon et al., No. (D.D.C. June 16, 2016) (describing lawsuit
by student disciplined by University of Virginia, alleging that OCR unlawfully promulgated its 2011
Dear Colleague Letter, was arbitrary and capricious in requiring the “preponderance of the evidence”
standard in violation of the APA, and exceeded statutory authority under Title IX); Complaint, Neal v.
Colo. State Univ.-Pueblo et al, No. 1:16-cv-00873 (D. Colo. April 19, 2016) (describing lawsuit by
suspended student against OCR alleging improper promulgation and enforcement of OCR’s DCL in
violation of the APA, and against the university alleging violation of Title IX and breach of contract).
936 CALIFORNIA LAW REVIEW [Vol. 104:881
reflect a growing perception that the post-DCL pressure that OCR exerted has
caused schools to adopt procedures and practices that deny fairness to accused
students. These cases reveal a pattern of accusations in which consent is the
key question and procedurally defective disciplinary processes support the
expansion of the bureaucracy’s domain over ordinary sex.
In one federal case, a male student sued Washington and Lee University
after expulsion for “nonconsensual sexual intercourse” with a female
student.254 He argued that the school’s procedures—which afforded no right to
counsel and employed a preponderance of the evidence standard—violated due
process and discriminated on the basis of sex in violation of Title IX.255 The
plaintiff alleged that the Title IX officer did not show him a copy of the
accuser’s complaint in a timely fashion, refused his request to have a lawyer
participate in the proceedings, failed to interview several of his suggested
witnesses, selectively omitted facts from the investigative report, denied his
request to record the hearing, and hindered him from putting questions to the
accuser, who attended the hearing behind a partition and was asked—through
the hearing board—only a subset of his questions.256 Moreover, the plaintiff
alleged, the Title IX officer had given a presentation arguing “regret equals
rape,” a position she framed as “a new idea everyone, herself included, is
starting to agree with.”257 Citing an article titled, Is it Possible That There is
Something In Between Consensual Sex and Rape . . . And That It Happens To
Almost Every Girl Out There? from a website called Total Sorority Move, the
presentation allegedly suggested “that sexual assault occurs whenever a woman
has consensual sex with a man and regrets it because she had internal
reservations that she did not outwardly express”—a situation allegedly parallel
to the incident for which the plaintiff was expelled.258
The court dismissed the plaintiff’s due process claim because the school
could not be considered a governmental actor subject to the Fifth Amendment,
even if it “was under pressure to convict students accused of sexual assault in
order to demonstrate that the school was in compliance with the OCR’s
guidance.”259 The court noted that “[r]esponding to the OCR’s guidance, W&L
made changes that one could infer were designed to secure more
convictions.”260 The court did permit the plaintiff’s Title IX claim to go
forward, however.261 Noting that the allegations, taken as true, amounted to “a
254. Doe v. Washington & Lee Univ., No. 6:14-cv-00052, 2015 WL 4647996, at *1 (W.D. Va.
Aug. 5, 2015) (mem.).
255. Id.
256. Id. at *4–6.
257. Id. at *3.
258. Id. at *10.
259. Id. at *9.
260. Id.
261. Id. at *10.
2016] THE SEX BUREAUCRACY 937
practice of railroading accused students,”262 the court found that the plaintiff
had “plausibly established a causal link between his expulsion and gender
bias.”263
In another federal case, the plaintiff, a male Columbia University student,
was suspended for engaging in “nonconsensual sexual intercourse” with a
female student.264 (Interestingly, the accuser also appealed the school’s six-
month suspension as too severe.)265 The court described the sexual encounter
this way:
Plaintiff and Jane Doe strolled around the Columbia University
neighborhood for approximately one hour, at which point they
returned to the lounge where Plaintiff had been studying. As Plaintiff
gathered his books, Jane Doe and Plaintiff began to flirt with each
other, and they discussed “hooking up” instead of going to bed.
Because each of their roommates was asleep at the time—and
Plaintiff’s roommate was Jane Doe’s ex-boyfriend—Jane Doe
suggested that they go to the bathroom located within her suite rather
than to either of their bedrooms.
Plaintiff dropped his bag off in his room, and then the two walked
together to Jane Doe’s suite. When they reached the bathroom
located within Jane Doe’s suite, Jane Doe instructed Plaintiff to wait
there while she went into her bedroom to find a condom. When Jane
Doe came back into the bathroom, she undressed herself in front of
Plaintiff, and the two proceeded to have sex. Afterwards, Jane Doe
took a shower, and Plaintiff returned to his room to go to sleep.
In the following weeks, Jane Doe contacted Plaintiff a few times to
express concern about how their sexual encounter might appear to
others in their social circle, particularly because Jane Doe had dated
Plaintiff’s roommate. At or about the same time, Jane Doe also spoke
about the encounter to Claire Kao, a resident adviser to both her and
Plaintiff, who then approached Plaintiff to discuss the evening. Kao
told Plaintiff that she had been advised that he had engaged in
“consensual sexual intercourse” with Jane Doe on the night of May
12th and that Jane Doe had sought to discuss the encounter with her
in confidence, but that she was required by state law to report the
incident to Columbia.266
In this case, the suspended student alleged the gender bias of the Title IX
investigator who, inter alia, failed to interview witnesses present on the night in
question. The court found that this alleged process failure was “arguably
irrelevant to the outcome of the hearing, as the panel’s ruling that Plaintiff had
262. Id. (quoting Haley v. Va. Commonwealth Univ., 948 F. Supp. 573, 579 (E.D. Va. 1996)).
263. Id.
264. Doe v. Columbia Univ., 101 F. Supp. 3d 356 (S.D.N.Y. 2015).
265. Id. at 356.
266. Id. at 362–63.
938 CALIFORNIA LAW REVIEW [Vol. 104:881
engaged in nonconsensual sex with Jane Doe did not turn on the events of that
night. Instead, the panel’s conclusion rested on its finding that ‘it [was] more
likely than not that [Plaintiff] directed unreasonable pressure for sexual activity
toward the Complainant over a period of weeks,’ and that ‘this pressure
constituted coercion.’”267 While the accuser initially described the incident as
“consensual,” it was in the weeks preceding the sex that alleged “[p]ressure for
a date or a romantic or intimate relationship” could have vitiated consent under
Columbia’s Gender-Based Misconduct policy.268 Other than the fact that the
individuals had sex, the facts of that night, then, were irrelevant, so procedural
failures in investigating into those facts did not cause an inaccurate outcome.
Even if the consent were clear, affirmative, or enthusiastic on the night in
question, it would have apparently been negated by the several weeks of
unreasonable pressure.269
In Doe v. Brandeis University, a federal court refused to dismiss a lawsuit
of a male student who was disciplined for unwanted sexual conduct arising in
the course of a twenty-one-month-long same-sex dating relationship.270 The
conduct for which Brandeis had disciplined the plaintiff included: touching the
clothed groin of the complainant (who would soon be his boyfriend) while the
two watched a movie; occasionally waking his boyfriend with a kiss; looking at
his boyfriend’s groin while showering together; and, while at his boyfriend’s
father’s house, attempting to perform oral sex when his boyfriend did not want
it.271 Brandeis had given the plaintiff a “disciplinary warning” which carried a
permanent notation of “serious sexual transgressions” on his educational
record.272 The court noted that, “substantially spurred by” OCR’s 2011 DCL,
“universities across the United States have adopted procedural and substantive
policies intended to make it easier for victims of sexual assault to make and
prove their claims and for the schools to adopt punitive measures in
response.”273 Stating that with its new policies, “Brandeis appears to have
substantially impaired, if not eliminated, an accused student’s right to a fair and
impartial process,” the court denied the university’s motion to dismiss the
plaintiff’s claims of breach of contract, breach of implied covenant of good
faith and fair dealing, negligence, and negligent infliction of emotional
distress.274
275. See Ritter v. Oklahoma et al., No. 5:16-cv-00438-HE (W.D. Okla. May 6, 2016) (finding a
substantial likelihood of success on the merits of student’s breach of contract claim against university,
and granting a preliminary injunction staying his expulsion for sexual misconduct); Doe v. Alger, No.
5:15-cv-00035, 2015 WL 1274025, at *10, 12-13 (W.D. Va. Mar. 31, 2016) (denying public
university officials’ motion to dismiss suspended student’s claim of deprivation of property interest in
continued enrollment without due process); Marshall v. Ind. Univ., No. 115CV00726TWPDKL, 2016
WL 1028362, at *6–7 (S.D. Ind. Mar. 15, 2016) (denying university’s motion to dismiss Title IX
claim of student expelled for sexual assault); Doe v. Rector & Visitors of George Mason Univ., No.
1:15-CV-209, 2015 WL 5553855, at *18 (E.D. Va. Feb. 25, 2016) (granting summary judgment on
federal due process claim in favor of student expelled for sexual misconduct); Prasad v. Cornell Univ.,
Civ. No. 15-cv-00322, slip op. at 50 (N.D.N.Y. Feb. 24, 2016) (denying university’s motion to dismiss
Title IX and New York Human Rights Law claims of student expelled for sexual misconduct); Doe v.
Brown Univ., No. CV 15-144 S, 2016 WL 715794, at *4, *16 (D.R.I. Feb. 22, 2016) (denying
university’s motion to dismiss Title IX breach of contract, breach of covenant of good faith and fair
dealing, and declaratory judgment claims, of student suspended for sexual misconduct); Doe v.
Middlebury Coll., No. 1:15-CV-192-JGM, 2015 WL 5488109, at *1, *4 (D. Vt. Sept. 16, 2015)
(granting preliminary injunction enjoining college from expelling student while student’s breach of
contract action against the college, related to sexual misconduct expulsion, proceeded); Doe v.
Salisbury Univ., 123 F. Supp. 3d 748, 760, 768 (D. Md. 2015) (finding student disciplined for sexual
misconduct “alleged a facially plausible claim of erroneous outcome sex discrimination in violation of
Title IX” as a result of the university’s proceedings); Doe v. Washington & Lee Univ., No. 6:14-cv-
0052, 2015 WL 4647996 (W.D. Va. Aug. 5, 2015) (mem.) (denying university’s motion to dismiss
Title IX claim of student expelled for nonconsensual sexual intercourse); Tanyi v. Appalachian State
Univ., No. 5:14-CV-170RLV, 2015 WL 4478853, at *1, *10 (W.D.N.C. July 22, 2015) (denying
university’s motion to dismiss procedural and substantive due process claims of student suspended for
sexual misconduct); Sterrett v. Cowan, 85 F. Supp. 3d 916, 929 (E.D. Mich. 2015) (denying
university’s motion to dismiss student’s due process claim of student suspended for sexual
misconduct); King v. DePauw Univ., No. 2:14-CV-70-WTL-DKL, 2014 WL 4197507, at *15 (S.D.
Ind. Aug. 22, 2014) (enjoining university’s suspension of student for sexual misconduct pending
student’s Title IX and breach of contract suit); Harris v. Saint Joseph’s Univ., No. CIV.A. 13-3937,
2014 WL 1910242, at *1, *7 (E.D. Pa. May 13, 2014) (denying university’s motion to dismiss state
unfair trade practices and consumer protection law claim of student disciplined for sexual assault);
Wells v. Xavier Univ., 7 F. Supp. 3d 746, 751–52 (S.D. Ohio 2014) (denying university’s motion to
dismiss breach of contract, intentional infliction of emotional distress, libel per se, negligence, and
Title IX claims of student expelled for sexual misconduct); Doe v. Univ. of S. Cal., No. B262917 (Cal.
Ct. App. Apr. 5, 2016) (holding that university denied accused student a fair hearing); Dixon v. Allee,
No. BS157112 (Cal. Super. Ct. Aug. 12, 2015) (order granting stay) (staying university’s expulsion of
student for sexual misconduct); Doe v. Regents of Univ. of Cal., San Diego, No. 37-2015-00010549-
CU-WM-CTL, at *5 (Cal. Super. Ct. July 10, 2015) (minute order) (finding accused student’s sexual
misconduct hearing was unfair and that the “evidence did not support the findings,” thus ordering
university to set aside its findings and sanctions against the accused); Mock v. Univ. of Tenn., No. 14-
1687-II, at *1, *8, *23 (Tenn. Ch. Ct. Aug. 10, 2015) (finding university’s expulsion of student for
sexual misconduct was arbitrary and capricious under the Tennessee Uniform Procedures Act);
McLeod v. Duke Univ., No. 14 CVS 3075, 2014 WL 8843115, at *1, *2 (N.C. Super. Ct. May 29,
2014) (enjoining university’s expulsion of student pending student’s suit for breach of “material
rights” related to sexual misconduct allegation and discipline process). But see Doe v. Univ. of
Cincinnati, No. 1:15-CV-681, 2016 WL 1161935 (S.D. Ohio Mar. 23, 2016) (granting university’s
motion to dismiss due process and Title IX claims of two students disciplined for sexual assault); Doe
v. Columbia Univ., No. 1:14-cv-03573-JMF (S.D.N.Y. Apr. 21, 2015) (granting university’s motion to
dismiss Title IX claims of student suspended for sexual misconduct).
940 CALIFORNIA LAW REVIEW [Vol. 104:881
schools.276 The legal claims now being litigated by plaintiffs under Title IX,
due process, or state law focus on flawed disciplinary procedures—encouraged,
if not mandated, by OCR—that schools have adopted for resolving sexual
misconduct allegations in concerted post-DCL efforts to take sexual violence
more seriously.277
Courts have reviewed not only claims about schools’ procedures, but also
substantive outcomes produced by those procedures. In a lawsuit against a state
school, Doe v. Regents of the University of California, San Diego,278 a
California court determined that the procedures used to hear allegations of
sexual misconduct violated federal due process, and that under state
administrative law, “substantial evidence does not support the finding of non-
consensual sexual activity.”279 At the school’s sexual misconduct hearing, the
accuser “stated that petitioner kept ‘trying to finger [her] and touch [her] down
there.’ Also, Ms. Roe did not object to sexual contact per se, and only
explained that it was not pleasurable for her at that time.”280 The court found:
What the evidence does show is Ms. Roe’s personal regret for
engaging in sexual activity beyond her boundaries. The panel’s
finding . . . illustrates the lack of evidence: “Jane stated that she
physically wanted to have sex with Ryan but mentally wouldn’t.” The
record reflects this ambivalence on the part of Ms. Roe. But Ms. Roe’s
own mental reservations alone cannot be imputed to petitioner,
particularly if she is indicating physically she wants to have sex.281
In this case, the procedural flaws included the limitation on the accused’s right
to cross-examine the accuser—more than two-thirds of his questions (many of
276. Some may posit that equal pressure on schools from OCR on one hand and from courts on
the other hand means the “system is working.” E.g., Courts, Not Campuses, Should Decide Sexual
Assault Cases, INTELLIGENCE SQUARED U.S. 17 (Sept. 16, 2015),
http://intelligencesquaredus.org/images/debates/past/transcripts/091615%20Sexual%20Assault.pdf
[https://perma.cc/JF8K-S2L3] (quoting Professor Stephen Schulhofer). But there is little reason to
think that being thus caught between a proverbial “rock and a hard place” will itself lead schools to fair
processes and just outcomes.
277. For a collection of lawsuits arising out of campus sexual misconduct cases, see Lawsuits,
BOYS & MEN EDUC., http://titleixforall.knackhq.com/due-process-lawsuits [https://perma.cc/NHD5-
3GQC] (last visited Apr. 20, 2016). For example, the plaintiff in Hemington v. Arizona Board of
Regents alleged, inter alia, that he was given insufficient opportunity for discovery, use of an improper
legal standard, and a lack of notice, since the school provided him with no specifics of his charge. See
First Amended Complaint at 6, 14, No. 4:11-cv-00058-FRZ (D. Ariz. July 1, 2015). In some cases,
accused students have sued their accusers in civil court. See, e.g., Cuba v. Pylant, No. 15-10212, 2016
WL 723311, at *1–2, *13 (5th Cir. Feb. 23, 2016) (denying a motion to dismiss accused student’s tort
claim against accuser and accuser’s parents); Carmen Forman, Roanoke College Student Acquitted of
Rape Re-enrolls, Sues Accuser, ROANOKE TIMES (Jan. 19, 2016, 10:16 PM),
http://www.roanoke.com/news/local/salem/roanoke-college-student-acquitted-of-rape-re-enrolls-sues-
accuser/article_fed17181-c2ef-5206-a5f8-38f270e34984.html [http://perma.cc/5Y93-CMC7].
278. Doe v. Regents of the Univ. of Cal., San Diego, No. 37-2015-00010549-CU-WM-CTL,
2015 WL 4394597 (Cal. Super. Ct. July 10, 2015) (minute order).
279. Id. at *4; see also id. at *3.
280. Id. at *4 (alteration in original) (emphasis added and omitted).
281. Id. (citation omitted).
2016] THE SEX BUREAUCRACY 941
which the court deemed germane) were not put by the panel to the accuser,
who was also placed behind a barrier so she could not be seen.282 In addition,
when the accused appealed the panel’s decision to suspend him for one quarter,
the Dean increased his suspension time to one year without providing any
reason for the increase.283
According to Doe v. University of Southern California, a male student
who engaged in sexual conduct that the female complainant agreed was
consensual was nevertheless disciplined for sexual misconduct because the
school found that he “‘encouraged or permitted’ other students to slap” the
buttocks of the complainant without consent during group sexual activity, and
that he “endangered” her “by leaving her alone in the bedroom when the
involved parties dispersed.”284 A California appellate court held not only that
the accused student was denied a fair hearing because the school did not
provide him notice of the factual basis of the charges, but also that there was
insufficient evidence to support the school’s finding that he encouraged or
permitted others to slap the complainant or that he endangered her by leaving
the bedroom.285
The cases yield some insight into the kinds of substantive fact patterns
that schools are classifying and disciplining as sexual misconduct. But an
unfortunate byproduct of the student privacy norms that schools, constrained
by the Family Educational Rights and Privacy Act (FERPA),286 understandably
must observe regarding campus disciplinary cases, is that research into the fact
patterns of campus cases is difficult to undertake. There is no comprehensive
database one can search, and no collected records a researcher can access.
While anecdotal evidence is informative, it is hard to know how representative
are the published legal cases, media reporting, and accounts by individual
accusers and accused students.
One partial collection of descriptions of campus cases has been published
by the NCHERM Group. The descriptions include the following:
A female student interviewed recently during an investigation had
spread rumors by social media that she had been raped by a male
student. When the rumors got back to the male student, he
approached her about it, and she offered him a lengthy apology, and
then put it in writing. We had to investigate nevertheless, and she
told us that they’d had a drunken hook-up that she consented to. She
was fine with what happened. We asked her why she called it a rape
then, and she said, “you know, because we were drunk. It wasn’t
rape, it was just rapey rape.” We asked her if she was aware of what
spreading such an accusation might do to the young man’s
assault for which one who is disciplined. This opens the door wide to
judgments about sexual morality that can shade the lived experience of consent.
On an individual level:
Did I consensually sleep with my roommate’s boyfriend? I would be
a bad person if I did, so I would not have done that.
Did I have consensual sex with a black/Latino/Asian man? That
would be inconsistent with what I have known and accepted about
my own desires, so I would not have done that.
On an institutional level, moral judgments about what kind of sex is good or
bad can inform determinations of consent:
Was this guy out to score that night?
Did he behave like a jerk and not seem to care about her feelings?
Was this sex pleasurable?
When prohibitions are vague, broad, and sweep in swathes of innocent conduct
in which many people engage, they raise questions about whether enforcement
may have a greater impact on certain groups over others.289 The same OCR that
is administering the sex bureaucracy has also acknowledged the serious risk of
race discrimination in student discipline in elementary and secondary schools
and found the need to issue guidance on “how to identify, avoid, and remedy
discriminatory discipline.”290 OCR’s Civil Rights Data Collection showed that
“African-American students . . . are more than three times as likely as their
white peers . . . to be expelled or suspended,”291 and that “the substantial racial
disparities. . . are not explained by more frequent or more serious misbehavior
by students of color.”292 OCR has recognized that “African-American students
were disciplined more harshly and more frequently because of their race than
similarly situated white students. In short, racial discrimination in school
discipline is a real problem.”293
Whose sexual conduct is more likely to be perceived by individuals and
schools as threatening, frightening, or menacing?294 And which accusers are
more likely to be perceived as victims?295 Is there good reason to think that the
unconscious racial stereotyping that may affect police and citizens in decisions
to suspect, accuse, arrest, or shoot black men would have no analogue in the
pattern of campus accusations and discipline for sexual misconduct?296 The
disproportionate impact of sexual misconduct accusations on minority students
is currently underappreciated.297 As Janet Halley puts it, “morning-after
remorse can make sex that seemed like a good idea at the time look really
alarming in retrospect; and the general social disadvantage that black men
continue to carry in our culture can make it easier for everyone in the
adjudicative process to put the blame on them.”298 Similarly, is it easier for
everyone in the process (including the accuser) to perceive a white (rather than
minority) accuser as not having consented to sexual conduct with a person of
another race?
The lack of transparency in campus investigations and adjudication
should cause serious concern that the public does not have a reliable way to see
a pattern of accusations, investigations, and discipline that may
disproportionately impact minorities. The race of the parties in misconduct
cases is not included in existing federal reporting requirements. Indeed, schools
may even perceive their obligations under FERPA 299 to forbid the release of
data on the race of parties—if schools are even compiling and saving such
information, which they have not been required to do.300 The Title IX
Atlanta, GA, have shamefully suffered the injustice of a racist criminal justice system that rushed to
judgment, with little or no evidence.”).
295. See Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and
Violence Against Women of Color, 43 STAN. L. REV. 1241, 1266, 1269 (1991) (noting the familiar
“casting of all Black men as potential threats to the sanctity of white womanhood,” and observing that
the “primary beneficiaries of policies supported by feminists and others concerned about rape tend to
be white women”).
296. See Jeannie Suk, Shutting Down Conversations About Rape at Harvard Law, NEW
YORKER (Dec. 11, 2015), http://www.newyorker.com/news/news-desk/argument-sexual-assault-race-
harvard-law-school [https://perma.cc/D5BN-486B] (“[I]f we have learned from the public reckoning
with the racial impact of over-criminalization, mass incarceration, and law enforcement bias, we
should heed our legacy of bias against black men in rape accusations. The dynamics of racially
disproportionate impact affect minority men in the pattern of campus sexual-misconduct accusations,
which schools, conveniently, do not track, despite all the campus-climate surveys. . . . The ‘always
believe’ credo will aggravate and hide this context, aided by campus confidentiality norms that make
any racial pattern difficult to study and expose.”).
297. See id.
298. See Janet Halley, Trading the Megaphone for the Gavel in Title IX Enforcement, 128
HARV. L. REV. FORUM 103, 107 (2015) [Megaphone].
299. 20 U.S.C. § 1232g (2012).
300. Cf. Halley, Megaphone, supra note 298, at 107–08 (“Case after Harvard case that has
come to my attention, including several in which I have played some advocacy or adjudication role,
has involved black male respondents, but the institution cannot ‘know’ this because it has not been
thought important enough to monitor for racial bias.”). FERPA “prohibits universities from
capriciously releasing ‘education records,’” and has been invoked to justify not releasing records
regarding sexual-assault complaints, making full consideration impossible. Jon Krakauer, How Much
Should a University Have to Reveal About a Sexual-Assault Case?, N.Y. TIMES (Jan. 21, 2016),
2016] THE SEX BUREAUCRACY 945
bureaucracy’s racial impact is a crucial subject for further study. But even as
observations of disproportionate racial impact circulate among the network of
administrators, lawyers, and faculty involved in sexual misconduct cases, and
appear in piecemeal reporting of cases, a systematic examination is challenging
to undertake because of schools’ norms of student privacy and confidentiality.
It is therefore urgently incumbent on OCR and its regulated institutions to
study and address the potential for racial discrimination in discipline at colleges
and universities, as OCR has done for general discipline in secondary and
elementary schools.
By way of example, in one race and sex discrimination case filed in
federal court, two black male student athletes who had sex with a white female
student sued Findlay University, alleging the school has “a pattern of . . .
discriminat[ing] against African-American males” in white females’ allegations
of sexual assault.301 The plaintiffs alleged that they were expelled within
twenty-four hours of the lodging of a sexual assault complaint, that the
University failed to question key witnesses including the complainant, and
threatened witnesses with expulsion or loss of work-study because their stories
corroborated the plaintiffs’.302 The expelled students alleged that the sexual
activity was consensual and that the complainant had bragged to others the
following morning about the consensual sexual encounter with the plaintiffs.303
The alleged facts in this particular lawsuit may appear extreme. But as related
stories emerge, the worry is that unfair procedures combined with overly broad
definitions of nonconsent may have a disproportionate impact on black men in
a way that is consistent with both our country’s specific history of false
accusations and unfair convictions of black men for rape and the more general
racially disproportionate impact of criminal law enforcement. Unfortunately,
those most likely to be affected by unfair policies and procedures and broad
prohibitions that leave all at the mercy of ambivalence may also be the least
likely to be able to afford attorneys in campus discipline processes or to file
subsequent lawsuits that could hold their schools accountable. Racially
disproportionate impact is, in a sense, a “miner’s canary” that calls for
examination of the workings of the sex bureaucracy.304
Note the important relationship between watered-down procedural
protections (the combination of the lack of ordinary practices of fair process,
inability to discover facts alleged and probe witness testimony, lack of
counsel’s participation, selective investigative practices, and the preponderance
http://www.nytimes.com/2016/01/20/magazine/how-much-should-a-university-have-to-reveal-about-
a-sexual-assault-case.html [http://perma.cc/V8X8-HQHN].
301. Complaint at 33, Browning v. Univ. of Findlay, No. 3:15-cv-02687 (N.D. Ohio Dec. 23,
2015).
302. Id.
303. Id. at 2.
304. LANI GUINIER & GERALD TORRES, THE MINER’S CANARY: ENLISTING RACE, RESISTING
POWER, TRANSFORMING DEMOCRACY (2003).
946 CALIFORNIA LAW REVIEW [Vol. 104:881
305. See, e.g., Sexual Violence: Prevention Strategies, supra note 155 (“[C]omprehensive
prevention strategies should address factors at each of the levels that influence sexual violence . . . .”);
Eve Birge, Addressing and Preventing Sexual Assault on Campus, HOMEROOM (Nov. 25, 2013),
http://blog.ed.gov/2013/11/addressing-and-preventing-sexual-assault-on-campus
[http://perma.cc/F2ZM-N3C9] (noting “the need for a comprehensive, coordinated approach to
violence prevention”); DOD & Services’ Policies, U.S. DEP’T DEF. SEXUAL ASSAULT PREVENTION &
RESPONSE, http://www.sapr.mil/index.php/dod-policy/dod-and-service-policy [http://perma.cc/XHB7-
8UG7] (last visited Apr. 4, 2016) (describing DOD’s “Sexual Assault Prevention and Response
Program Procedures” as “[c]omprehensive procedures for responding to the crime of sexual assault
within DoD”); Governor Cuomo Announces SUNY Adopts a Comprehensive System-Wide Uniform
Sexual Assault Policy for All 64 Campuses, N.Y. GOVERNOR’S PRESS OFF. (Dec. 2, 2014),
https://www.governor.ny.gov/news/governor-cuomo-announces-suny-adopts-comprehensive-system-
wide-uniform-sexual-assault-policy [http://perma.cc/RX5V-DWQ4] (“The State University of New
York now has the most comprehensive, victim-centered set of sexual assault policies at any college
campus or system of higher education in the country.”) (quoting SUNY Board Chairman H. Carl
McCall).
306. Cf. Tharp et al., supra note 161, at 137–38 tbl.3.
307. Weber, supra note 2, at 216.
308. FREUD, supra note 1, at 25.
309. See Jacob E. Gersen & Matthew C. Stephenson, Over-Accountability, 6 J. LEGAL
ANALYSIS 185, 213 (2014); see also Ethan Bueno de Mesquita & Dimitri Landa, Political
Accountability and Sequential Policymaking, 132 J. PUB. ECON. 95 (2015).
948 CALIFORNIA LAW REVIEW [Vol. 104:881